Judge Frederick Scullin

Under contract, Northeast Petroleum Technologies (NPT) reconstructed Cumberland Farms’ gas station and convenience store. Davis, NPT’s foreman, was hurt while installing a drainage pipe in a trench that tapered from seven to three feet. Davis’s suit claiming Cumberland’s breach of New York Labor Law §§200 and 241(6) was removed to district court on diversity grounds. Cumberland’s third party suit asserted NPT’s contractual duty to indemnify it if Davis recovered damages, and NPT’s breach by failing to obtain insurance requiring its insurer to defend and indemnify Cumberland for losses sustained in personal injury actions by NPT employees. Despite granting judgment against Davis, the court dismissed Cumberland’s third-party suit against NPT. Cumberland lacked the necessary supervision and control over Davis’ work site to be liable under Labor Law §200. Further, by not addressing Cumberland’s motion to dismiss his §241(6) claim, Davis abandoned that claim. Even if not abandoned, judgment was appropriate given Davis’ failure to plead an Industrial Code regulation violated by Cumberland. Among other things, violation of Occupational Safety and Health Administration standards do not provide a basis for liability under §241(6).