| Venezia v State of New York |
| 2008 NY Slip Op 09587 [57 AD3d 522] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Damian Venezia, Appellant, v State of New York,Respondent. |
—[*1] Cozen O'Connor, New York, N.Y. (Eric J. Berger of counsel), for respondent.
In a claim to recover damages for personal injuries, the claimant appeals, as limited by his brief,from so much of an order of the Court of Claims (Ruderman, J.), dated June 27, 2007, as grantedthose branches of the defendant's motion which were for summary judgment dismissing the Labor Law§ 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon alleged violations of 12 NYCRR 23-1.7 (e) and 23-2.1.
Ordered that the order is affirmed insofar as appealed from, with costs.
Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon an owner orgeneral contractor to provide reasonable and adequate protection to workers on the premises (seeRizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). In order to establish liability underLabor Law § 241 (6), a claimant is required to establish a breach of a rule or regulation of theIndustrial Code which gives a specific, positive command (see Singleton v Citnalta Constr. Corp.,291 AD2d 393, 394 [2002]).
Here, the claimant alleges that the State violated two provisions of the Industrial Code: 12 NYCRR23-1.7 (e) and 23-2.1. In opposition to the defendant's prima facie showing of entitlement to judgmentas a matter of law, the claimant failed to raise a triable issue of fact as to whether 12 NYCRR 23-1.7(e) was violated. The rebar upon which he tripped was an integral part of the construction (see O'Sullivan v IDI Constr. Co., Inc., 7NY3d 805 [2006]; Stafford v Viacom,Inc., 32 AD3d 388, 390 [2006]; Furino [*2]v P & O Ports, 24 AD3d502, 503-504 [2005]; cf. Laboda v VJV Dev. Corp., 296 AD2d 441 [2002]).Moreover, the claimant failed to raise a triable issue of fact with respect to his reliance on 12 NYCRR23-2.1. That section of the Industrial Code lacks the specificity required to be a predicate for liabilityunder Labor Law § 241 (6) (seeSalinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]; Fowler v CCS QueensCorp., 279 AD2d 505 [2001]).
To be held liable under Labor Law § 200, "when a claim arises out of alleged defects ordangers in the methods or materials of the work, recovery against the owner or general contractorcannot be had . . . unless it is shown that the party to be charged had the authority tosupervise or control the performance of the work" (Ortega v Puccia, 57 AD3d 54, 61 [2008]). Here, the defendantsubmitted deposition testimony demonstrating that it had no authority to supervise or control theperformance of the claimant's work, and the claimant failed to raise a triable issue of fact in opposition.On this basis, the Court of Claims properly granted those branches of the defendant's motion whichwere for summary judgment dismissing the Labor Law § 200 and common-law negligencecauses of action (id.; see Chowdhury v Rodriguez, 57 AD3d 121 [2008]; see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In view of the foregoing, we need not address the claimant's remaining contention. Spolzino, J.P.,Angiolillo, Dickerson and Belen, JJ., concur.