Tronolone v. New York State Department of Transportation

Appeal from an order of the Court of Claims (Jeremiah J. Moriarty, III, J.), entered February 23, 2009. The order granted [1489] the motion of defendant for summary judgment dismissing the claim. It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Claimants commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Caesar Tronolone (claimant) when he slipped on a piece of scrap plywood that had been placed underneath a temporary road sign. The Court of Claims properly granted that part of defendant’s motion for summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (d). We note that the remaining causes of action were withdrawn prior to the court’s determination. Although 12 NYCRR 23-1.7 (d) is sufficiently specific to support a Labor Law § 241 (6) cause of action (see Scarupa v Lockport Energy Assoc., 245 AD2d 1038 [1997]), we nevertheless conclude that the piece of plywood on which claimant slipped “is not . . . the sort of [floor,] passageway, walkway, [scaffold, platform or other elevated] working area contemplated by 12 NYCRR 23-1.7 (d)” (Barnes v DeFoe/Halmar, 271 AD2d 387, 388 [2000]). Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.