Gist v. Central School Dist. No. 1

• Decision Date: 30 December 1996
• Citation: 651 N.Y.S.2d 818,234 A.D.2d 976
• Parties: , 115 Ed. Law Rep. 52 Mark GIST, Respondent, v. CENTRAL SCHOOL DISTRICT NO. 1 of towns of Elma, Marilla, Wales, Lancaster and Aurora, Erie County, and Bennington, Wyoming County, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 818

651 N.Y.S.2d 818

234 A.D.2d 976, 115 Ed. Law Rep. 52

Mark GIST, Respondent, v. CENTRAL SCHOOL DISTRICT NO. 1 of towns of Elma, Marilla, Wales, Lancaster and Aurora, Erie County, and Bennington, Wyoming County, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 30, 1996.

O'Shea Reynolds & Cummings by Erin Peradotto, Buffalo, for Appellant.

Arnold T. Lieberman & Associates by Arnold Lieberman, Buffalo, for Respondent.

Before DENMAN, P.J., and PINE, WESLEY, DOERR and BALIO, JJ.

MEMORANDUM.

Plaintiff was a laborer employed by a contractor hired by defendant to replace a roof at one of defendant's school buildings. He was injured while carrying a pail of hot tar across an area of the new roof where two-ply felt paper and a water sealant known as "Karnac" or "Zooky" had been applied when he "skidded" on the water sealant, causing the hot tar to splash onto his arm. He commenced this action alleging a Labor Law § 241(6) cause of action based upon a violation of section 23-1.7(d) of the Industrial Code (12 NYCRR 23-1.7[d] ). That section states that "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Although plaintiff alleged a violation of a specific safety regulation as required by Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-505, 601 N.Y.S.2d 49, 618 N.E.2d 82, that regulation has no application to the facts of this case. The water sealant upon which plaintiff slipped does not constitute a foreign substance within the meaning of that regulation but is an integral part of the new roof that was being constructed (see, Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854; Adams v. Glass Fab, 212 A.D.2d 972, 973, 624 N.Y.S.2d 705; cf., Cottone v. Dormitory Auth. of State of N.Y., 225 A.D.2d 1032, 639 N.Y.S.2d 631; Durfee v. Eastman Kodak Co., 212 A.D.2d 971, 972, 624 N.Y.S.2d 704, lv. dismissed 85 N.Y.2d 968, 629 N.Y.S.2d 726, 653 N.E.2d 622).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.