Opinion
February 22, 1996
Appeal from the Supreme Court, New York County (Carol Huff, J.).
The IAS Court properly concluded that an allegation of a violation of 12 NYCRR 23-1.33 cannot support a claim under Labor Law § 241 (6), since that regulation does not mandate compliance with specifications ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). The regulation provides that "[r]easonable and adequate protection and safety" be provided at construction sites and that the "means, methods, procedures, devices or structures used to provide such protection and safety shall include but not be limited to railings, fences, barricades" ( 12 NYCRR 23-1.33 [a] [1], [3]). In context, this regulation is a general safety standard, and, contrary to plaintiffs' argument, cannot be read specifically to have required defendant Structure Tone to place "railings, fences [or] barricades" near where the sheetrock was supposedly left at the construction site. On appeal, plaintiffs apparently have abandoned their argument that violations of 12 NYCRR 23-1.9 (a) and 23-2.1 (a) (1) would support the Labor Law § 241 (6) claim, and plaintiffs' argument that 12 NYCRR 23-1.7 (e) would suffice is improperly argued for the first time on appeal. In any event, we would find those arguments unpersuasive. Finally, we note that although plaintiffs' Labor Law § 241 (6) claim is not viable, the common-law negligence cause of action survives in this action.
Concur — Milonas, J.P., Wallach, Ross and Mazzarelli, JJ.