Opinion
October 2, 1998
Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.
Present — Green, J. P., Wisner, Pigott, Jr., Balio and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied, that part of the cross motion of Ben-Mil Associates, Inc., and Benderson Development Co., Inc. (defendants), seeking summary judgment dismissing the Labor Law § 241 Lab. (6) claim premised upon an alleged violation of 12 NYCRR 23-1.7 (e) (2). That regulation provides in pertinent part that "areas where persons work or pass shall be kept free from accumulations of dirt and debris * * * insofar as may be consistent with the work being performed." The court properly determined that issues of fact remain whether defendants violated that specific safety regulation ( see, Adams v. Glass Fab, 212 A.D.2d 972) and whether such violation was a proximate cause of the accident. Additionally, we conclude that there is an issue of fact concerning the applicability of the regulation. The accident occurred in an are, a bisected by newly poured curb and covered with loose stone and debris. It cannot be determined as a matter of law that the area at issue is separate from the place at which road construction was being performed ( cf., Stairs v. State St. Assocs., 206 A.D.2d 817). Defendants contend that plaintiff Jerome F. Schley tripped over curbing or stone that was an integral part of the road being constructed ( see, Lenard v. 1251 Ams. Assocs., 241 A.D.2d 391; Adams v. Glass Fab, supra, at 973). It is equally feasible, however that crushed stone and debris left from the construction were substantial factors in his fall.