Schley v. Danco Construction, Inc.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied that part of the cross motion of Ben-Mil Associates, Inc., and Benderson Development Co., Inc. (defendants), seeking summary judgment dismissing the Labor Law § 241 (6) claim premised upon an alleged violation of 12 NYCRR 23-1.7 (e) (2). That regulation provides in pertinent part that “areas where persons work or pass shall be kept free from accumulations of dirt and debris * * * insofar as may be consistent with the work being performed.” The court properly determined that issues of fact remain whether defendants violated that specific safety regulation (see, Adams v Glass Fab, 212 AD2d 972) and whether such violation was a proximate cause of the accident. Additionally, we conclude that there is an issue of fact concerning the applicability of the regulation. The accident occurred in an area bisected by newly poured curb and covered with loose stone and debris. It cannot be determined as a matter of law that the area at issue is separate from the place at which road construction was being performed (cf, Stairs v State St. Assocs., 206 AD2d 817). Defendants contend that plaintiff Jerome F. Schley tripped over curbing or stone that was an integral part of the road being constructed (see, Lenard v 1251 Ams. Assocs., 241 AD2d 391; Adams v Glass Fab, supra, at 973). It is equally feasible, however, that crushed stone and debris left from the construction were substantial factors in his fall. (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Summary Judgment.) Present — Green, J. P., Wisner, Pigott, Jr., Balio and Boehm, JJ.