Opinion
December 19, 1986
Appeal from the Supreme Court, Monroe County, Provenzano, J.
Present — Callahan, J.P., Boomer, Green, Balio and Lawton, JJ.
Judgment unanimously reversed, on the law, without costs, and new trial granted. Memorandum: Under the circumstances of this case, we deem a new trial to be necessary. In this action by plaintiff worker arising from a construction site accident, the court failed to instruct the jurors concerning the nondelegable duty imposed upon a general contractor pursuant to Labor Law § 241 (6). As the general contractor, LeChase had a nondelegable duty to provide a safe workplace in accordance with the statutory requirements irrespective of its control of supervision of the construction site (Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 300). The jury could well have inferred from the court's instructions that breach of a regulation promulgated pursuant to statute (Labor Law § 241) was tantamount to a violation of the statute. Although the duty imposed by Labor Law § 241 (6) is nondelegable, breach of a regulation promulgated under that statute is only some evidence of negligence, and instructing a jury that breach of a regulation promulgated under Labor Law § 241 (6) creates liability constitutes error (Long v. Forest-Fehlhaber, 55 N.Y.2d 154; Allen v. Cloutier Constr. Corp., supra). The court further complicated matters by charging that a breach of that statutory duty will make both the general contractor and plaintiff's employer liable to the plaintiff.