Basile v. ICF Kaiser Engineers Corp.

• Decision Date: 31 May 1996
• Citation: 227 A.D.2d 959,643 N.Y.S.2d 854
• Court: New York Supreme Court — Appellate Division
• Parties: Angelo BASILE and Kelly Basile, Appellants, v. ICF KAISER ENGINEERS CORP., LTV Steel Company and Hanna Furnace Corporation, Respondents. ICF KAISER ENGINEERS CORP., et al., Third-Party Plaintiffs, v. CHARLES SHUTRUMP & SONS CO., Third-Party Defendant-Respondent.

Page 854

643 N.Y.S.2d 854

227 A.D.2d 959

Angelo BASILE and Kelly Basile, Appellants, v. ICF KAISER ENGINEERS CORP., LTV Steel Company and Hanna

Furnace Corporation, Respondents.

ICF KAISER ENGINEERS CORP., et al., Third-Party Plaintiffs, v. CHARLES SHUTRUMP & SONS CO., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Fourth Department.

May 31, 1996.

Collins, Collins and Kantor, P.C. by Brian Reddy, Buffalo, for Appellants.

Hurwitz and Fine, P.C. by William Jemmott, Buffalo, for Respondents--ICF Kaiser Eng., LTV Steel and Hanna Furnace Corp.

Saperston and Day, P.C. by Thomas Segalla, Buffalo, for Third-Party Defendant-Respondent.

Before GREEN, J.P., and PINE, LAWTON, BALIO and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly granted summary judgment dismissing the complaint seeking damages for common-law negligence and violations of Labor Law §§ 200, 240(1) and § 241(6). Angelo Basile (plaintiff) slipped on a stack of pipes and fell onto the pipes. Thus, he did not fall from an elevated work site (see, Mitchell v. County of Jefferson, 226 A.D.2d 1109, 641 N.Y.S.2d 963; Cipolla v. Flickinger Co., 172 A.D.2d 1064, 1065, 570 N.Y.S.2d 252), and the accident did not involve an elevation-related risk encompassed by Labor Law § 240(1) (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).

To establish a prima facie cause of action under Labor Law § 241(6), plaintiff was required to show that defendants, as nonsupervising owners or contractors, violated a specific rule or regulation of the Commissioner of Labor "mandating compliance with concrete specifications" (Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82). He failed to meet that burden. Section 23-1.5 of the Commissioner's Regulations (12 NYCRR) states a general standard of care and does not support a Labor Law § 241(6) violation (McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 629 N.Y.S.2d 358; see also, Dombrowski v. Schwartz, 217 A.D.2d 914, 629 N.Y.S.2d 924). The pipes had been delivered and stacked in a staging area in order to be cleaned. The stack of pipes did not constitute a passageway or elevated work area, and thus 12 NYCRR 23-1.7(d) does not apply (see, McGrath v. Lake Tree Vil. Assocs., supra; Stairs v. State St. Assocs., 206 A.D.2d 817, 818, 615 N.Y.S.2d 478). Moreover, the slippery substance was an integral part of the pipes (see, Adams v. Glass Fab, 212 A.D.2d 972, 973, 624 N.Y.S.2d 705). The remaining sections of the Industrial Code relied upon by plaintiff (12 NYCRR 23-3.3, 23-5.1, 23-9.8) also do not apply to this case.

Lastly, the proof establishes that defendants exercised no supervisory control over plaintiff's work. Thus, defendants were entitled to summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action (see, Comes v. New York...