State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 17, 2015 520936 

________________________________

JASON TROMBLEY,

Appellant,

v MEMORANDUM AND ORDER

DLC ELECTRIC, LLC, et al., 

Respondents.

________________________________

Calendar Date: October 19, 2015

Before: McCarthy, J.P., Rose, Devine and Clark, JJ.

__________

Anderson, Moschetti & Taffany, PLLC, Latham (David J.

Taffany of counsel), for appellant.

Costello, Cooney & Fearon, PLLC, Camillus (Maureen G.

Fatcheric of counsel), for respondents.

__________

McCarthy, J.P.

Appeal from an order of the Supreme Court (Zwack, J.),

entered July 8, 2014 in Rensselaer County, which granted

defendants' motion for summary judgment dismissing the complaint.

In October 2011, while working on a hotel construction

project for his employer, Bast Hatfield Construction, LLC, which

was the general contractor on the project, plaintiff tripped on

conduits that stuck up from the floor and fell, injuring his

elbow. Plaintiff commenced this personal injury action,

alleging, among other things, claims pursuant to Labor Law §§ 200

and 241 (6) against defendant DLC Electric, LLC, the electrical

subcontractor for the project, defendant Donald C. Greene, the

owner of the property, and defendant CP Hotel, LLC, a development

company relative to the project. Defendants moved for summary
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judgment dismissing the complaint, which motion Supreme Court

granted. Plaintiff appeals, and we affirm.

Supreme Court properly granted summary judgment dismissing

the complaint against DLC Electric. "[T]he absolute liability

imposed upon owners and general contractors pursuant to Labor Law

. . . § 241 (6) does not apply to prime contractors having no

authority to supervise or control the work being performed at the

time of the injury" (Morris v C & F Bldrs., Inc., 87 AD3d 792,

793 [2011] [internal quotation marks and citation omitted]; see

Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981];

Decotes v Merritt Meridian Corp., 245 AD2d 864, 866 [1997]). 

Similarly, liability pursuant to Labor Law § 200 does not attach

to a defendant who lacked the authority to control the activity

that led to the injury (see Russin v Louis N. Picciano & Son, 54

NY2d at 317; Morris v C & F Bldrs., Inc., 87 AD3d at 793). 

Defendants submitted the testimony of plaintiff, who

testified that no one other than Bast Hatfield told him how to

perform his work, which included installing door frames and

finishing sheetrock. A project manager for DLC Electric

established that DLC Electric was a subcontractor, having

contracted with Bast Hatfield for the limited purpose of

performing electrical work. Further evidence established that

Bast Hatfield, and not DLC Electric, had authority over safety

measures on the site. Given that plaintiff's submissions failed

to raise a material issue of fact in regard to this evidence, DLC

Electric was entitled to summary judgment dismissing the Labor

Law §§ 200 and 241 (6) claims against it (see Morris v C & F

Bldrs., Inc., 87 AD3d at 793; Cook v Thompkins, 305 AD2d 847,

847-848 [2003]; Decotes v Merritt Meridian Corp., 245 AD2d at

866). 

Turning to summary judgment in favor of Greene, the

property owner, as well as CP Hotel, "to state a claim under

[Labor Law §] 241 (6), a plaintiff must allege that the property

owners violated a regulation that sets forth a specific standard

of conduct and not simply a recitation of common-law safety

principles" (St. Louis v Town of N. Elba, 16 NY3d 411, 414

[2011]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,

503-505 [1993]). Moreover, it is axiomatic that the regulations
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cited by plaintiff must be applicable to the circumstances of the

injury (see Boots v Bette & Cring, LLC, 124 AD3d 1119, 1120

[2015]; Francis v Aluminum Co. of Am., 240 AD2d 985, 987 [1997]).

Plaintiff contends that its allegations pursuant to 12

NYCRR 23-1.5 and 23-1.7 (d), (e) and (f) should have survived

defendants' motion for summary judgment. 12 NYCRR 23-1.5 recites

the "General responsibility of employers" and does not provide a

basis for a claim under Labor Law § 241 (6) because it does not

contain "concrete specifications sufficient to impose a duty on

defendant[s]" (Narrow v Crane-Hogan Structural Sys., 202 AD2d

841, 842 [1994]; see Stairs v State St. Assoc., 206 AD2d 817, 818

[1994]). 12 NYCRR 23-1.7 (d) pertains to walking surfaces and

slippery conditions; plaintiff testified that his injuries were

caused by tripping on exposed conduits, rendering this provision

inapplicable. While 12 NYCRR 23-1.7 (e) applies to tripping

hazards, the provision does not apply to injuries caused by

conduits such as those described by plaintiff, which were "an

integral part of the construction" (O'Sullivan v IDI Constr. Co.,

Inc., 7 NY3d 805, 806 [2006]; accord Verel v Ferguson Elec.

Constr. Co., Inc., 41 AD3d 1154, 1157 [2007]). Finally,

according to plaintiff's testimony, his accident did not involve

him ascending or descending to a different level, which renders

12 NYCRR 23-1.7 (f), regarding "Vertical passage," inapplicable. 

Plaintiff's remaining contentions are also without merit. 

Rose, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, with costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court