Opinion
520936.
12-17-2015
Jason TROMBLEY, Appellant, v. DLC ELECTRIC, LLC, et al., Respondents.
Anderson, Moschetti & Taffany, PLLC, Latham (David J. Taffany of counsel), for appellant. Costello, Cooney & Fearon, PLLC, Camillus (Maureen G. Fatcheric of counsel), for respondents.
Anderson, Moschetti & Taffany, PLLC, Latham (David J. Taffany of counsel), for appellant.
Costello, Cooney & Fearon, PLLC, Camillus (Maureen G. Fatcheric of counsel), for respondents.
Opinion
McCARTHY, J.P.
Appeal from an order of the Supreme Court (Zwack, J.), entered July 8, 2014 in Rensselaer County, which granted defendants' motion for summary judgment dismissing the complaint.
In October 2011, while working on a hotel construction project for his employer, Bast Hatfield Construction, LLC, which was the general contractor on the project, plaintiff tripped on conduits that stuck up from the floor and fell, injuring his elbow. Plaintiff commenced this personal injury action, alleging, among other things, claims pursuant to Labor Law §§ 200 and 241(6) against defendant DLC Electric, LLC, the electrical subcontractor for the project, defendant Donald C. Greene, the owner of the property, and defendant CP Hotel, LLC, a development company relative to the project. Defendants moved for summary judgment dismissing the complaint, which motion Supreme Court granted. Plaintiff appeals, and we affirm.
Supreme Court properly granted summary judgment dismissing the complaint against DLC Electric. “[T]he absolute liability imposed upon owners and general contractors pursuant to Labor Law ... § 241(6) does not apply to prime contractors having no authority to supervise or control the work being performed at the time of the injury” (Morris v. C & F Bldrs., Inc., 87 A.D.3d 792, 793, 928 N.Y.S.2d 154 2011 [internal quotation marks and citation omitted]; see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805 1981; Decotes v. Merritt Meridian Corp., 245 A.D.2d 864, 866, 666 N.Y.S.2d 763 1997 ). Similarly, liability pursuant to Labor Law § 200 does not attach to a defendant who lacked the authority to control the activity that led to the injury (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d at 317, 445 N.Y.S.2d 127, 429 N.E.2d 805; Morris v. C & F Bldrs., Inc., 87 A.D.3d at 793, 928 N.Y.S.2d 154).
Defendants submitted the testimony of plaintiff, who testified that no one other than Bast Hatfield told him how to perform his work, which included installing door frames and finishing sheetrock. A project manager for DLC Electric established that DLC Electric was a subcontractor, having contracted with Bast Hatfield for the limited purpose of performing electrical work. Further evidence established that Bast Hatfield, and not DLC Electric, had authority over safety measures on the site. Given that plaintiff's submissions failed to raise a material issue of fact in regard to this evidence, DLC Electric was entitled to summary judgment dismissing the Labor Law §§ 200 and 241(6) claims against it (see Morris v. C & F Bldrs., Inc., 87 A.D.3d at 793, 928 N.Y.S.2d 154; Cook v. Thompkins, 305 A.D.2d 847, 847–848, 760 N.Y.S.2d 251 2003; Decotes v. Merritt Meridian Corp., 245 A.D.2d at 866, 666 N.Y.S.2d 763).
Turning to summary judgment in favor of Greene, the property owner, as well as CP Hotel, “to state a claim under Labor Law § 241(6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles” (St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 414, 923 N.Y.S.2d 391, 947 N.E.2d 1169 2011; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 503–505, 601 N.Y.S.2d 49, 618 N.E.2d 82 1993 ). Moreover, it is axiomatic that the regulations cited by plaintiff must be applicable to the circumstances of the injury (see Boots v. Bette & Cring, LLC, 124 A.D.3d 1119, 1120, 3 N.Y.S.3d 141 2015; Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987, 659 N.Y.S.2d 903 1997 ).
Plaintiff contends that its allegations pursuant to 12 NYCRR 23–1.5 and 23–1.7(d), (e) and (f) should have survived defendants' motion for summary judgment. 12 NYCRR 23–1.5 recites the “General responsibility of employers” and does not provide a basis for a claim under Labor Law § 241(6) because it does not contain “concrete specifications sufficient to impose a duty on defendant[s]” (Narrow v. Crane–Hogan Structural Sys., 202 A.D.2d 841, 842, 609 N.Y.S.2d 372 1994; see Stairs v. State St. Assoc., 206 A.D.2d 817, 818, 615 N.Y.S.2d 478 1994 ). 12 NYCRR 23–1.7(d) pertains to walking surfaces and slippery conditions; plaintiff testified that his injuries were caused by tripping on exposed conduits, rendering this provision inapplicable. While 12 NYCRR 23–1.7(e) applies to tripping hazards, the provision does not apply to injuries caused by conduits such as those described by plaintiff, which were “an integral part of the construction” (O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805, 806, 822 N.Y.S.2d 745, 855 N.E.2d 1159 2006; accord Verel v. Ferguson Elec. Constr. Co., Inc., 41 A.D.3d 1154, 1157, 838 N.Y.S.2d 280 2007 ). Finally, according to plaintiff's testimony, his accident did not involve him ascending or descending to a different level, which renders 12 NYCRR 23–1.7(f), regarding “Vertical passage,” inapplicable. Plaintiff's remaining contentions are also without merit.
ORDERED that the order is affirmed, with costs.
ROSE, DEVINE and CLARK, JJ., concur.