Mendoza v. Marche Libre Associates

Appellate Division of the Supreme Court of New York

Mendoza v. Marche Libre Associates

256 A.D.2d 133, 681 N.Y.S.2d 517, 1998 N.Y. App. Div. LEXIS 13762

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1998

StatusPublished

Cited by8 cases

This text of 256 A.D.2d 133 (Mendoza v. Marche Libre Associates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mendoza v. Marche Libre Associates, 256 A.D.2d 133, 681 N.Y.S.2d 517, 1998 N.Y. App. Div. LEXIS 13762 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 22, 1997, which, inter alia, granted the motion of defendant McDee Construction to dismiss plaintiff’s Labor Law § 241 (6) cause of action, unanimously affirmed, without costs.

The motion court properly dismissed plaintiff’s Labor Law § 241 (6) cause of action predicated upon violations of 12 NYCRR 23-1.7 (e) and 23-2.1 (b). While we have held that violations of section 23-1.7 (e) (1) may support a Labor Law § 241 (6) cause of action (Farina v Plaza Constr. Co., 238 AD2d 158), we agree with the motion court that the dumpster where plaintiff stepped on a nail does not constitute a “passageway” pursuant to that regulation, and, accordingly, that that regulation is not applicable to the facts at bar (see, Cafarella v Harrison Radiator Div., 237 AD2d 936; Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959; Adams v Glass Fab, 212 AD2d 972). The other regulation upon which plaintiff relies, 12 NYCRR 23-2.1 (b), does not sufficiently set forth “a specific standard of conduct as opposed to a general reiteration of common-law principles” for its violation to qualify as a predicate for a Labor Law § 241 (6) cause of action (Adams v Glass Fab, supra, at 973; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-504). Concur — Lerner, P. J., Sullivan, Milonas, Rosenberger and Ellerin, JJ.

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—Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 22, 1997, which, inter alia, granted the motion of defendant McDee Construction to dismiss plaintiff’s Labor Law § 241 (6) cause of action, unanimously affirmed, without costs.

The motion court properly dismissed plaintiff’s Labor Law § 241 (6) cause of action predicated upon violations of 12 NYCRR 23-1.7 (e) and 23-2.1 (b). While we have held that violations of section 23-1.7 (e) (1) may support a Labor Law § 241 (6) cause of action (Farina v Plaza Constr. Co., 238 AD2d 158), we agree with the motion court that the dumpster where plaintiff stepped on a nail does not constitute a “passageway” pursuant to that regulation, and, accordingly, that that regulation is not applicable to the facts at bar (see, Cafarella v Harrison Radiator Div., 237 AD2d 936; Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959; Adams v Glass Fab, 212 AD2d 972). The other regulation upon which plaintiff relies, 12 NYCRR 23-2.1 (b), does not sufficiently set forth “a specific standard of conduct as opposed to a general reiteration of common-law principles” for its violation to qualify as a predicate for a Labor Law § 241 (6) cause of action (Adams v Glass Fab, supra, at 973; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-504). Concur — Lerner, P. J., Sullivan, Milonas, Rosenberger and Ellerin, JJ.

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256 A.D.2d 133, 681 N.Y.S.2d 517, 1998 N.Y. App. Div. LEXIS 13762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendoza-v-marche-libre-associates-nyappdiv-1998.

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