        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1320
CA 14-00177
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


JESSE CAUDILL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER INSTITUTE OF TECHNOLOGY,
DEFENDANT-RESPONDENT.


E. MICHAEL COOK, P.C., ROCHESTER (MICHAEL S. STEINBERG OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (MATTHEW
A. LENHARD OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a second amended order of the Supreme Court, Monroe
County (Ann Marie Taddeo, J.), entered September 11, 2013. The second
amended order granted that part of the motion of defendant for summary
judgment dismissing the Labor Law § 241 (6) claim insofar as it is
based on the alleged violation of 12 NYCRR 23-1.7 (e) (1).

     It is hereby ORDERED that the second amended order so appealed
from is unanimously reversed on the law without costs and that part of
defendant’s motion for summary judgment dismissing the Labor Law § 241
(6) claim insofar as it is based on the alleged violation of 12 NYCRR
23-1.7 (e) (1) is denied.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when he
allegedly stepped on a “softball”-sized rock or clump of hard dirt
while descending an earthen ramp into a trench. In support of his
Labor Law § 241 (6) claim, plaintiff alleged the violation of 12 NYCRR
23-1.7 (e) (1), which addresses tripping hazards in passageways.
Defendant moved for summary judgment dismissing the complaint, and
plaintiff cross-moved for leave to amend his bill of particulars to
add 12 NYCRR 23-1.23 as additional support for his Labor Law § 241 (6)
claim. In an order entered September 4, 2013, Supreme Court granted
plaintiff’s cross motion and granted those parts of defendant’s motion
with respect to the negligence claim as well as the claims asserted
under Labor Law §§ 200 and 240 (1). The court denied that part of
defendant’s motion with respect to the Labor Law § 241 (6) claim
insofar as it is based on the newly alleged violation of 12 NYCRR 23-
1.23 and reserved decision on that part of defendant’s motion with
respect to the Labor Law § 241 (6) claim insofar as it is based on the
alleged violation of 12 NYCRR 23-1.7 (e) (1). While that order is not
contained in the record on appeal, it was submitted to this Court on
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                                                         CA 14-00177

earlier motions related to this appeal, and we may take judicial
notice of our records (see Matter of Liliana G. [Orena G.], 91 AD3d
1325, 1326-1327; see also Samuels v Montefiore Med. Ctr., 49 AD3d 268,
268). No notice of appeal was filed with respect to that order.

     By a second amended order, entered September 11, 2013, the court
granted that part of defendant’s motion for summary judgment
dismissing the Labor Law § 241 (6) claim only insofar as it is based
on the alleged violation of 12 NYCRR 23-1.7 (e) (1). Plaintiff filed
a notice of appeal with respect to the second amended order.

     On this appeal, plaintiff challenges both the order and second
amended order, contending that his attorney “reasonably interpreted
the [second amended] order under appeal as incorporating the previous
order[] by reference, at least implicitly.” We reject that
contention. In the second amended order, the court merely noted that
it had previously granted various parts of defendant’s motion for
summary judgment, granted plaintiff’s cross motion to amend the bill
of particulars and reserved decision on that part of the motion with
respect to the Labor Law § 241 (6) claim. The second amended order
does not specifically incorporate the earlier order and, indeed, does
not specify the date of the earlier order. In our view, “the
reference to the terms of the [prior] order . . . did not effectively
incorporate that prior order’s [provisions]” (Matter of Melissa G.,
306 AD2d 919, 919-920), and we thus conclude that we cannot consider
any issues related to that earlier order (see Weichert v Delia, 1 AD3d
1058, 1058-1059, lv denied 1 NY3d 509; Lehoczky v New York State Elec.
& Gas Corp., 149 AD2d 862, 863). “Although minor defects in a notice
of appeal may be disregarded ([see] CPLR 2001) and an appellate court
may treat a notice of appeal which contains ‘an inaccurate description
of the judgment or order appealed from’ as valid (CPLR 5520 [c]),
these provisions cannot be used to ‘amend a notice of appeal so as to
insert therein an order from which no appeal has in fact ever been
taken’ ” (Lehoczky, 149 AD2d at 863; see generally Weichert, 1 AD3d at
1058-1059).

     We agree with plaintiff, however, that the court erred in
granting that part of defendant’s motion for summary judgment seeking
dismissal of the Labor Law § 241 (6) claim insofar as it is based on
the alleged violation of 12 NYCRR 23-1.7 (e) (1). That section
provides, in pertinent part, that “[a]ll passageways shall be kept
free from accumulations of dirt and debris and from any other
obstructions or conditions which could cause tripping” (12 NYCRR 23-
1.7 [e] [1]). Although a single rock or clump of dirt does not
constitute an “accumulation[] of dirt and debris,” we agree with
plaintiff that it may nevertheless constitute another “obstruction[]
or condition[] which could cause tripping” (12 NYCRR 23-1.7 [e] [1]).
We thus conclude that defendant failed to meet its initial burden of
establishing that there was no violation of 12 NYCRR 23-1.7 (e) (1).
While defendant on appeal relies exclusively on cases interpreting 12
NYCRR 23-1.7 (e) (2), such reliance is misplaced inasmuch as that
section concerns working areas rather than the “passageways” at issue
in section 23-1.7 (e) (1) (see Canning v Barney’s N.Y., 289 AD2d 32,
34).
                                 -3-                          1320
                                                         CA 14-00177

     Finally, defendant contends that the court properly granted that
part of its motion seeking dismissal of the Labor Law § 241 (6) claim
insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (e)
(1) because plaintiff’s allegations concerning the cause of his fall
are speculative. We reject that contention. Defendant, as the moving
party, was required “to establish in the first instance that . . .
[its] violation [of the regulation] was not a proximate cause of the
accident” (Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345,
1349). In support of its motion, defendant submitted a transcript of
plaintiff’s deposition, wherein plaintiff repeatedly alleged that the
object on the ramp caused his fall. We thus conclude that defendant
failed to meet its initial burden of establishing as a matter of law
that any alleged violation of 12 NYCRR 23-1.7 (e) (1) was not a
proximate cause of the accident (see e.g. Babiack v Ontario Exteriors,
Inc., 106 AD3d 1448, 1449-1450; Ganger v Anthony Cimato/ACP
Partnership, 53 AD3d 1051, 1053). This is not a situation in which
the plaintiff “did not know what caused [him] to fall,” and it is not
“ ‘just as likely that the accident could have been caused by some
other factor, such as a misstep or loss of balance’ ” (McGill v United
Parcel Serv., Inc., 53 AD3d 1077, 1077).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
