This case stems from a construction accident that occurred on December 10, 2003 at premises under construction located at City Centre located in the City of White Plains, New York described as the "Air Rights Garage" project (the "project" or "job site"). The accident premises were owned and being developed by defendant Cappelli Enterprises, Inc. ("Cappelli"), and the general contractors were HRH Construction LLC ("HRH") and George A. Fuller Company, Inc. ("Fuller").

On or about April 9, 2002, Third-party defendant/Second third-party plaintiff Unistress Corporation ("Unistress") entered into an agreement with third-party plaintiff Fuller pursuant to which it agreed to provide certain work, labor, materials and services in connection with the project. Thereafter, on or about November 4, 2002, Unistress entered into a subcontract with third-party defendant Taylor Erectors, Inc. ("Taylor")

Unistress moves for an order, pursuant to CPLR 3212 granting summary judgment: (1) dismissing the Labor Law 241(6) claim of plaintiffs Kevin McDevitt ("plaintiff") and Theresa McDevitt (collectively "plaintiffs"); and (2) dismissing all claims of negligence against Unistress.

The Parties' Contentions and Rule 23 of the Industrial Code

Unistress argues that plaintiffs' Labor Law 241(6) claim fails because plaintiffs have pled violations of Rule 23 of the Industrial Code, that are clearly inapplicable to the facts of this case, or that if applicable were not violated, or because of plaintiffs' lack of proof of such violation. In fact, many of the specific violations of the 12 NYCRR 23 regulations that are claimed are belied by plaintiff's own deposition testimony and testimony of James Doheny ("Doheny"), a witness who was present at the time of the alleged accident.

12 NYCRR 23-1.5

This section concerns general common law standards of care and premises liability. These general provisions are insufficiently specific to be considered a predicate for liability under Labor Law 241(6). Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.5, is granted.

12 NYCRR 23-1.7(a), (b), ( c), (g) and (h) [*2]

Unistress argues that plaintiff himself makes no claim and provides no testimony or other evidence that defendants violated 12 NYCRR 23-1.7(a) concerning overhead hazards or; 23-1.7(b) concerning holes in a floor or other such falling hazards or; 23-1.7 (c ) concerning drowning hazards or; 23-1.7(g) relating to deficiency of air or oxygen at this site open to the outside environment or; 23-1.7(h) pertaining to the presence of corrosive substances at, near or during the occurrence of his fall.

Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.7(a), (b), ( c ), (g) and (h), is granted.

12 NYCRR 23-1.7(d)

Unistress argues that with respect to the provisions of 12 NYCRR 23-1.7(d) (slipping hazards), plaintiff testified that there was no snow, ice, water, grease, spills or foreign substance in the area of the staircase where he fell. So this provision of Section 23 is also inapplicable as a basis for defendants' vicarious liability under Labor Law 241(6). Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.7(d), is granted.

12 NYCRR 23-1.7(f)

Likewise, the provisions of 12 NYCRR 23-1.7(f) (vertical passage) were satisfied because proper load bearing stairways and ladders were provided at the work site for ascent and descent of workers at the job site and plaintiff testified that this was indeed true. Plaintiff was not injured because of a lack of proper access from one level to another at his work site. So, the provisions of Section 23-1.7(f) that apply to provision of vertical access to job site is likewise inapplicable to plaintiff's claim under Labor Law 241(6).

Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.7(f), is granted.

12 NYCRR 23-1.15

There is uncontroverted testimony from James Doheny that the railings on the stairway itself had two railings: a top railing and a mid-railing both made of 2x4 wood. Plaintiff confirms that these railings were located at the periphery of the landing at the top of the stairs and on the stairway itself. This satisfies the Rule 23-1.15 requirement for a top and a mid level railing. There is also a specific 12 NYCRR 23-1.15 railing requirement mandating the presence of a toe railing extending four inches up from the floor of a landing and also four inches up from the tread of each step on a stairway. Plaintiff testified that the nail that caused his fall was located 6 to 8 inches above the bottom of the post. These railing requirements of 12 NYCRR 23-1.15 are inapplicable to the matter at issue and should not be considered as a basis for vicarious liability under Labor Law 241(6). Plaintiff does not allege that the nail was protruding from a railing.Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.15, is granted.

12 NYCRR 23-1.21 and 23-1.30 [*3]

Section of 12 NYCRR 23-1.21 concerning ladders is inapplicable herein, as is 23-1.30 concerning illumination. Plaintiff testified that the stairway at issue was open to unobstructed mid-morning daylight from above and from the side. Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-1.21 and 1.30, is granted.

12 NYCRR 23-2.1(a)(1), (2) and (b)

12 NYCRR 23-2.1(a)(1) concerns storage of building materials. There has been testimony that building materials and material piles were located on the top floor of the parking garage to which the stairway at issue connected. However, there has also been specific plaintiff testimony that he did not encounter any such materials, unstable or otherwise, before, during, or at the bottom of his fall. Nor has there been testimony or a claim that the weight or placement of any storage materials violated the provisions of 12 NYCRR 23-2.1(a)(2) or that presence of debris violated the provisions of 12 NYCRR 23-2.1(b). In fact there is no allegation or testimony that storage of materials and/or debris was the cause of plaintiff's fall or involved in the fall in any way. There is no testimony that any materials or debris at all were placed on the landing platform where the fall began. There has been no testimony or allegation that materials or debris were present on any tread or landing of the stairway. Plaintiff has testified that there was no material or debris in the area where plaintiff alleges he landed after his fall. There is no allegation that the presence of material or debris contributed to or caused the fall or was involved in the alleged injuries resulting from the fall. The allegation of violation of Labor Law 241(6) because of failure to comply with specific factors of 12 NYCRR 23-2.1 or any of the sub parts of said regulation is inapplicable to this lawsuit and should be stricken from the lawsuit.

Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-2.1(a)(1), (2) and (b), is granted.

12 NYCRR 23-2.7

12 NYCRR 23-2.7 concerns the placement and construction of temporary stairways at construction sites and as such is directly applicable to this lawsuit which is about a trip and fall at the top of just such a temporary stairway. However, the stairway at issue complies with every part and subsection of Section 23-2.7 and thus since this section was not violated, it cannot be a specific factor for finding a breach of Labor Law 241(6). Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-2.7, is granted.

12 NYCRR 23-5

Section 12 NYCRR 23-5 concerns requirements for scaffolds at the work site. Neither the stairway nor the landings at the top or the middle of the stairway fit within the definition of a scaffold within the meaning of this section. Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment [*4]dismissing the Labor Law § 241(6) cause of action as it pertains to 12 NYCRR 23-5, is granted.

OSHA

Further, plaintiffs' citing of OSHA Regulation 1926 as a predicate to establish liability under Labor Law 241(6) is improper in New York. Plaintiff does not present arguments in opposition to this portion of Unistress' motion. Therefore, the motion of Unistress for summary judgment dismissing the Labor Law § 241(6) cause of action as it pertains to any OSHA claims, is granted.

The testimony of Mr. John Fata, a carpenter for Rogers & Sons Concrete, Inc., contains an admission that he built two staircases at the job site. He also testified that to his knowledge, Precision Carpentry did not build any staircases at the job site in question.

As a matter of law, there is no proof that any subcontractor acted unreasonably. No one knows who put the offending nail in the post or when. No one had actual knowledge of this alleged defect. There has been no evidence to establish constructive notice. As a matter of law, "unreasonableness" cannot be proved on such evidence.

As Unistress notes in reply, plaintiff concedes that only two rules of the Industrial Code are at issue in this lawsuit. And, by failing to address Unistress' argument against all other rule violations, Unistress is entitled to summary judgment dismissing all claimed Industrial Code violations and OSHA violations, save 12 NYCRR 23-1.7(e).

12 NYCRR 23-1.7(e)

This is the one area with respect to the Industrial Codes that plaintiff does submit opposition to the Unistress motion for summary judgment.

Plaintiff's Deposition Testimony

On the date of the accident, plaintiff was employed by Taylor as a journeyman (p. 12). Taylor was hired by Unistress to erect the columns and walls of a parking garage. Plaintiff's job duties included (a) helping erect the stone columns; (b) putting said stone on a wall utilizing a crane; ( c ) attaching bolts and clips to secure the above, and then finally welding the clips on (p. 25). Plaintiff's foreman was Donnie Leonard ("Leonard"), and his immediate supervisor was Doheny (p. 26). On the date of the accident, plaintiff was welding just below the roof level (p. 34). Plaintiff was in the process of welding a clip into place (p. 34). Plaintiff stopped welding and proceeded to go two floors below in order to make adjustments on a large generator which controlled the welding (pp. 34- 38). In order to do this, plaintiff had to walk down a wooden stair case (p. 50). While descending the wooden stairway leading from the top floor to the floor below, plaintiff's right trouser leg pants was caught on a protruding nail on the right stairway post. This prevented his right foot from reaching the first tread causing plaintiff to fall head over heels down the stairway and its immediate landing to the bottom of the stairs (p. 58). Plaintiff noticed the nail, after the accident (p. 93) and pointed it out to his immediate supervisor, Doheny who went up and hammered said nail in (p. 94)

Doheny's Deposition Testimony

Corroboration of said accident is established in the deposition of Doheny, plaintiff's immediate supervisor. Doheny was employed by Taylor as general foreman at the job site (p. 9). Doheny's deposition testimony confirms the fact that plaintiff's accident occurred on the wooden staircase of the west end of the air rights garage (p. 29). Doheny heard plaintiff cry out as he [*5]slipped and fell down the staircase (p. 30). Doheny testified "I saw his pant get hung up on a nail that was sticking out of the side of a handrail" (p. 30). I saw the nail that was at the vertical post of the top step. The nail was sticking out a quarter, three eighths of an inch. It was a double headed nail sticking out in the direction where a pedestrian would descend the stairs" (pp. 33- 35).

Unistress argues that an actual item of building material that is actually used in construction is not to be considered "debris." Nor is that piece of building material, such as a nail, once it becomes part of a structure to be considered an obstruction or tripping hazard for the purposes envisioned by the framers of 12 NYCRR 23-1.7(e).

With respect to 12 NYCRR 23-1.7(e) tripping hazards, the plaintiff testified that although the concrete floor of the top level of the parking structure contained some repository of debris and/or supplies strewn on its floor, the immediate area surrounding the stairway that is the subject of this case was free of building materials, supplies and debris. Further, there is no testimony that the platform at the top of the stairway or the stairs themselves contained any loose building materials or debris or other items which had anything to do with this accident. A nail that was an integral part of the structure of the stairway cannot be considered debris and cannot be considered either debris or a tripping hazard within the ambit of 12 NYCRR 23-1.7(e).

Unistress argues that as to the "sharp projection" aspect of 12 NYCRR 23-1.7(e), there is no testimony that the alleged projecting nail that initiated plaintiff's fall was "sharp." Plaintiff does not know if the blunt head of the nail was exposed or the pointy end of the nail was exposed.

12 NYCRR 23-1.7(e) requires that sharp projections in a passageway be covered or removed. Similarly section 12 NYCRR 23-1.7(e)(2) requires that work areas be free of sharp projections insofar as is consistent with the work being performed. These sections refer to sharp projections as those that could "cut or puncture" a person.

In this case, plaintiff has no proof whatsoever, even assuming the nail was protruding by 3 ½ to 4 inches as he testified, that such protrusion was the proximate cause of his trip and fall.

Plaintiff counters arguing that it is uncontested that there was a protruding nail on the staircase which constitutes a tripping hazard as well as obstruction and condition which caused plaintiff to trip and fall on the date of the accident.

Further, the defendant's argument that the nail which injured plaintiff was not a sharp projection is absurd. Nor is there any merit to defendant's suggestion that the nail was an "integral part of the work." There is no suggestion whatsoever, that the nail was in any way connected to the work plaintiff was performing at the time of the accident.

Analysis

Labor Law 241(6)

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). In order to recover a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed (see Ross, 81 NY2d at 501-502; Long v. Forest-Fehlhaber, 55 NY2d 154 [1982] ). However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department [*6]of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law (see Ross, 81 NY2d at 502-504). The violation of a specific standard of conduct, once proven, does not establish negligence as a matter of law, but rather is some evidence of negligence to be considered with other relevant proof (see Long, 55 NY2d at 160).

As the Court of Appeals explained in Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYLS2d 816 (1998) "Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault (see, Allen v Cloutier Constr. Corp., 44 NY2d 290, 45 NY2d 776; see also, Monroe v City of New York, 67 AD2d 89, 103-107); PJI 2:216A, at 807-809 [1997]). An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241 (6), including contributory and comparative negligence (see, Long v Forest-Fehlhaber, supra , at 159-161; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502, n 4; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521-522, rearg denied 65 NY2d 1054). (Emphasis added)

This court finds that the issue as to what party to, or participant in, the construction project caused plaintiff's injury is for the jury to decide.§ 23-1.7 Protection from general hazards

(e) Tripping and other hazards.

(1) Passageways. all passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials d from sharp projections insofar as may be consistent with the work being performed.

Case law determining the applicability of 12 NYCRR 23-1.7(e) has held that material that has actually already been incorporated into a structure being constructed cannot be considered debris. And, an object that is an integral part of a construction project is not debris and does not constitute liability under 12 NYCRR 23-1.7(e). However, plaintiff testified that the nail in question served no purpose. As such, an issue of fact exists as to whether the nail was an integral part of the structure and outside of 23-1.7(e)

Unistress has failed to demonstrate its entitlement to summary judgment dismissing the cause of action based on Labor Law § 241(6), to the extent that the cause of action is based on an alleged violation of 12 NYCRR 23-1.7(e) (1) and (2). The stairway in which the accident occurred was a work area for the injured plaintiff, and there are issues of fact as to whether the protruding nail was a "sharp projection" in violation of that provision ( see Kerins v Vassar Coll., 293 AD2d 514, 740 NYS2d 400; McAndrew v Tennessee Gas Pipeline Co., 216 AD2d 876, 628 NYS2d 991). [*7]

Unistress argues that as to the "sharp projection" aspect of 12 NYCRR 23-1.7(e), there is no testimony that the alleged projecting nail that initiated plaintiff's fall was "sharp." Plaintiff does not know if the blunt head of the nail was exposed or the pointy end of the nail was exposed. However, Doheny testified that he hammered the nail in after plaintiff's fall. Thus, a question of fact exists as to whether the nail was a "sharp projection."

Conclusion

Based on the foregoing, it is hereby

ORDERED, that the application of third-party defendant/second third-party plaintiff Unistress Corporation, for an order dismissing the Labor Law 241(6) claim of plaintiffs Kevin McDevitt and Theresa McDevitt, is granted, to the extent that all alleged Industrial Code violations are dismissed except 12 NYCRR 23-1.7(e)(1) and (2). It is further

ORDERED that the application of third-party defendant/second third-party plaintiff Unistress Corporation, for an order dismissing all claims of negligence against Unistress Corporation, is denied. It is further

ORDERED that counsel for third-party defendant/second third-party plaintiff Unistress Corporation shall serve a copy of this order with notice of entry within twenty days of entry on all counsel.

This constitutes the decision and order of this court. Dated:August 28, 2007

___________________________________

Carol Robinson Edmead, J.S.C.