Trombley v. DLC Electric, LLC , 21 N.Y.S.3d 498 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 17, 2015 520936
________________________________
JASON TROMBLEY,
Appellant,
v MEMORANDUM AND ORDER
DLC ELECTRIC, LLC, et al.,
Respondents.
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Calendar Date: October 19, 2015
Before: McCarthy, J.P., Rose, Devine and Clark, JJ.
__________
Anderson, Moschetti & Taffany, PLLC, Latham (David J.
Taffany of counsel), for appellant.
Costello, Cooney & Fearon, PLLC, Camillus (Maureen G.
Fatcheric of counsel), for respondents.
__________
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
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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 AD3d 792,
793 [2011] [internal quotation marks and citation omitted]; see
Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981];
Decotes v Merritt Meridian Corp., 245 AD2d 864, 866 [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
NY2d at 317; Morris v C & F Bldrs., Inc., 87 AD3d at 793).
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 AD3d at 793; Cook v Thompkins, 305 AD2d 847,
847-848 [2003]; Decotes v Merritt Meridian Corp., 245 AD2d at
866).
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 NY3d 411, 414
[2011]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,
503-505 [1993]). Moreover, it is axiomatic that the regulations
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cited by plaintiff must be applicable to the circumstances of the
injury (see Boots v Bette & Cring, LLC, 124 AD3d 1119, 1120
[2015]; Francis v Aluminum Co. of Am., 240 AD2d 985, 987 [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 AD2d
841, 842 [1994]; see Stairs v State St. Assoc., 206 AD2d 817, 818
[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 NY3d 805, 806 [2006]; accord Verel v Ferguson Elec.
Constr. Co., Inc., 41 AD3d 1154, 1157 [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.
Rose, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court