Albicocco v. New York City School Construction Authority

Order, Supreme Court, New York County (Louis York, J.), entered on or about December 12, 1995, which, in an action under Labor Law §§ 200 and 241 (6), granted defendant general contractor’s motion for summary judgment dismissing the complaint as against it and dismissing codefendant owner’s cross claims against it, unanimously affirmed, without costs.

Plaintiff, a payloader operator, claims he sustained injuries when he tried to dislodge metal debris from his payloader while excavating and moving fill. We agree with the motion court that plaintiff’s claim under Labor Law § 241 (6) should be *362dismissed for lack of a showing that defendant violated any safety rule and regulations, specific or not, promulgated by the Department of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). His claim under Labor Law § 200 should be dismissed because the accident was caused by plaintiff’s voluntary act, defendants’ contract with plaintiffs employer imposed no duty on defendant to provide a fill site free of metal debris, and there is no evidence that defendant exercised any supervisory control over the manner in which the debris was to be removed (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Gokey v Castine, 163 AD2d 709). Concur—Murphy, P. J., Milonas, Nardelli and Andrias, JJ.