Arenas v. Bon-Ton Department Stores, Inc.
| Decision Date | 22 December 2006 |
| Docket Number | 1485.,CA 06-01400. |
| Citation | 2006 NY Slip Op 09799,829 N.Y.S.2d 297,35 A.D.3d 1205 |
| Parties | THEODORE ARENAS, Respondent, v. THE BON-TON DEPARTMENT STORES, INC., Appellant, and SCHULER-HAAS CORP., Respondent-Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Appeals from an order of the Supreme Court, Monroe County (Robert J. Lunn, J.), entered August 22, 2005 in a personal injury action. The order, among other things, denied the motions of defendants the Bon-Ton Department Stores, Inc. and Schuler-Haas Corp. for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion in its entirety and as modified the order is affirmed without costs.
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained while installing drywall in a building owned by defendant The Bon-Ton Department Stores, Inc. (Bon-Ton). According to the deposition testimony of plaintiff, he tripped and fell over what he described as a piece of flexwire that was one inch in diameter and 10 to 12 inches in length. Plaintiff testified at his deposition that he cleared a path approximately four feet in width from the drywall cart where he cut the drywall to his worksite approximately 100 feet away. Approximately 20 times prior to his accident, he traversed the area where employees of defendant Schuler-Haas Corp. (Schuler-Haas), the electrical subcontractor, were working at an elevated site. Plaintiff testified that when he looked at the path approximately three minutes before he fell he did not observe any obstruction. He also testified that he had observed an employee of Schuler-Haas throw four pieces of flexwire to the floor approximately 10 minutes before his accident.
We conclude that Supreme Court erred in granting those parts of plaintiff's cross motion seeking partial summary judgment on liability under Labor Law § 241 (6) against Bon-Ton and Schuler-Haas upon determining that those defendants violated 12 NYCRR 23-2.1 (b) and 23-1.7 (e) (2). We therefore modify the order accordingly. The court properly determined that 12 NYCRR 23-2.1 (b) is sufficiently specific to support a cause of action pursuant to Labor Law § 241 (6) (see Scally v Regional Indus. Partnership, 9 AD3d 865, 868 [2004]). In addition, the court properly determined that 12 NYCRR 23-1.7 (e) (2) is applicable because the object over which plaintiff tripped was not an integral part of the work he was performing (see Maza v University Ave. Dev. Corp., 13 AD3d 65, 66 [2004]; cf. Cooper v Sonwil Distrib. Ctr., Inc., 15 AD3d 878, 879 [2005]). We nevertheless conclude, however, that the court erred in determining that Bon-Ton and Schuler-Haas violated those regulations as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In any event, even assuming, arguendo, that those defendants violated one or both of the regulations, we note that it is well established that the violation of an Industrial Code regulation "does not establish negligence as a matter of law but is `merely some evidence to be considered on the question of a defendant's negligence'" (Schmeer v County of Monroe, 175 AD2d 633, 633-634 [1991]; see Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113 [2004]; Russell v Baker Rd. Dev., 278 AD2d 790 [2000], lv dismissed 96 NY2d 824 [2001]).
We conclude that the court also erred in granting that part of plaintiff's cross motion seeking partial summary judgment on liability under Labor Law § 200 against Schuler-Haas, and we therefore further modify the order accordingly. Although Schuler-Haas lacked authority to supervise and control plaintiff's work, its contract with Bon-Ton provided that it was responsible for the "housekeeping" of its work area. We therefore conclude that Schuler-Haas...
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