McAndrew v. Tennessee Gas Pipeline Co.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing plaintiffs’ second cause of action insofar as it alleges a violation of Labor Law § 241 (6) and the applicable provisions of the Industrial Code. Charles McAndrew (plaintiff) was injured while working on the construction of a gas transmission pipeline on property owned by defendant. While walking backward, he tripped over a piece of wood partially buried in a five or six-foot trench; the wood protruded about one inch. Defendant argues that plaintiffs’ reliance on 12 NYCRR 23-1.7 (e) (2) is insufficient to sustain a cause of action under Labor Law § 241 (6). We disagree. That regulation provides in relevant part that working areas shall be kept free from "scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” (12 NYCRR 23-1.7 [e] [2].) We conclude that the regulation provides the requisite concrete specifications, as opposed to general safety standards, of the Industrial Code necessary to sustain a Labor Law § 241 (6) cause of action (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; Gaul v Motorola, Inc., 216 AD2d 879 [decided herewith]). We modify the order on appeal, therefore, by denying in part defendant’s motion for summary judgment and reinstating the second cause of action insofar as it alleges a violation of Labor Law § 241 (6) and "the applicable provisions of the Industrial Code of the State of New York promulgated thereunder.” (Appeal from Order of Supreme Court, Livingston County, Calvaruso, J.—Labor Law.) Present—Denman, P. J., Pine, Wesley, Balio and Davis, JJ.