Fox v. Hydro Development Group, Inc.

222 A.D.2d 1124, 635 N.Y.S.2d 897, 1995 N.Y. App. Div. LEXIS 14324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1995
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant summary judgment dismissing the complaint. Jeffrey M. Fox (plaintiff), an employee of Graham Construction and Maintenance Corporation, the general contractor on a project owned by Hydro Development Group, Inc. (defendant), was injured while waiting to use a portable toilet when a front-end loader ran over his foot.

On appeal, plaintiffs only challenge is whether claims pursuant to Labor Law §§ 200 and 241 (6) should have been dismissed. Because defendant established that it exercised no supervision or control over the location of the portable toilet and plaintiff failed to raise an issue of fact on that issue, the claim alleging a violation of Labor Law § 200 was properly dismissed (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876).

We further conclude that the court properly dismissed the Labor Law § 241 (6) claim. Plaintiffs claim with respect to that section rests upon alleged violations of the Occupational Safety and Health Act (OSHA) as well as 12 NYCRR 23-1.9 (c) (3) and (e). OSHA violations do not support liability under Labor Law § 241 (6) (see, McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; McSweeney v Rochester Gas & Elec., 216 AD2d 878).

Section 23-1.9 (c) (3) of the Industrial Code, entitled "Accessibility of toilet facilities,” is not a safety regulation but rather is a health regulation, mandating that facilities be located reasonably close to the worksite. It does not address safety issues. Even assuming, arguendo, that it is sufficiently specific, that regulation has no application to the facts of this case (see, e.g., Adams v Glass Fab, 212 AD2d 972). Plaintiff testified at an examination before trial that he was injured while standing four or five feet from the portable toilet waiting for it to be vacated. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Labor Law.) Present — Pine, J. P., Fallon, Wesley, Do-err and Davis, JJ.