CONSTRUCTION WORKER'S FOOT RUN OVER BY BACKHOE MAY HAVE LABOR LAW CLAIM; DEFENSE SUMMARY JUDGMENT MOTION SEEKING DISMISSAL DENIED

Court: Supreme Court, Appellate Division, First Department, New York

Case: Akron Scott v. Westmore Fuel Company, Incorporated

Date: June 12, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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Order, Supreme Court, New York County (Norma Ruiz, J.), entered on or about January 21, 2011, which, insofar as appealed from as limited by the briefs, dismissed plaintiff's Labor Law Sec. 241(6) claim as asserted against all the defendants, unanimously modified, on the law, to deny summary judgment dismissing the claim insofar as it is predicated on 12 NYCRR Sec. 23-9.5(c), and otherwise affirmed, without costs.

Plaintiff was riding on the exterior step of a moving backhoe when he fell and the backhoe ran over his left foot. The accident occurred at defendants Purdy Avenue Terminals and Westmore Fuel Company's (collectively Westmore) fuel tank facility. Westmore had retained defendant Diamondhead Construction & Maintenance Corp. (Diamondhead) to replace a rubber containment lining to prevent soil contamination from fuel leaks. Diamondhead subcontracted plaintiff's employer to perform the installation work.

The statutory protection of Labor Law Sec. 241(6) extends to the activity in which plaintiff was engaged at the time of the accident, regardless of whether the backhoe was being brought from storage to the work site for use (see Gherardi v. City of New York, 49 A.D.3d 280, 852 N.Y.S.2d 126 [2008]), or taken away from the work site for storage at the end of the work day (see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881-882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003]; Danielewski v. Kenyon Realty Co., 2 A.D.3d 666, 770 N.Y.S.2d 97 [2003]). However, 12 NYCRR Sec. 23-9.4(a) is too general to support a Labor Law Sec. 241(6) claim (see Robinson v. County of Nassau, 84 A.D.3d 919, 921, 923 N.Y.S.2d 135 [2011]; Brechue v. Town of Wheatfield, 241 A.D.2d 935, 935, 661 N.Y.S.2d 334 [1997], lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d 5, 726 N.E.2d 482 [2000]). 12 NYCRR Secs. 23-1.7(b), 23-1.23(a), 23-9.2(h)(2), 23-9.2(i), 23-9.4(c), 23-9.4(h)(2), and 23-9.4(h)(4) are inapplicable to the circumstances here. The exception for "excavating machines used for material hoisting" under 12 NYCRR Sec. 23_6.1(a) bars application of 12 NYCRR Sec. 23-6.1(c) and 12 NYCRR Sec. 23-6.1(i) (see St. Louis v. Town of N. Elba, 70 A.D.3d 1250, 894 N.Y.S.2d 587 [2010], affd. 16 N.Y.3d 411, 923 N.Y.S.2d 391, 947 N.E.2d 1169 [2011]).

Nonetheless, we find that plaintiff has a claim under 12 NYCRR Sec. 23-9.5(c), in view of plaintiff's testimony that he was not licensed or trained to operate a backhoe, and his foreman's testimony that plaintiff's responsibilities entailed primarily excavation work. Such evidence indicates that plaintiff was not part of the "operating crew" and thus, was not authorized to be on the backhoe while it was in motion or operation.

While plaintiff did not allege violation of 12 NYCRR Sec. 23-9.2(b)(1) in his pleadings, he argues that this argument is raised in his expert affidavit. However, the court properly rejected the expert affidavit as inadmissible, given that the affidavit, which was notarized in New Jersey, was lacking a certificate of conformity (see CPLR 2309[c]), and that plaintiff did not disclose the expert until the filing of his affirmation in opposition, after the note of issue and certificate of readiness had been filed (see CPLR 3101 [d][1][i]; Colon v. Chelsea Piers Mgt., Inc., 50 A.D.3d 616, 855 N.Y.S.2d 201 [2008]; Safrin v. DST Russian & Turkish Bath, Inc., 16 A.D.3d 656, 791 N.Y.S.2d 443 [2005]; cf. Baulieu v. Ardsley Assoc., L.P., 85 A.D.3d 554, 555, 925 N.Y.S.2d 466 [2011]). In any event, 12 NYCRR Sec. 23-9.2(b)(1) is a mere general safety standard that is insufficiently specific to give rise to a nondelegable duty under the statute (see Hricus v. Aurora Contrs., Inc., 63 A.D.3d 1004, 1005, 883 N.Y.S.2d 61 [2009]; Berg v. Albany Ladder Co., Inc., 40 A.D.3d 1282, 1285, 836 N.Y.S.2d 720 [2007], affd. 10 N.Y.3d 902, 861 N.Y.S.2d 607, 891 N.E.2d 723 [2008]).

The court also properly denied plaintiff's request to amend the bill of particulars to allege violation of 12 NYCRR Sec. 23-9.4(h)(5), as such request, made after the note of issue was filed, was untimely and prejudicial (see Reilly v. Newireen Assoc., 303 A.D.2d 214, 218, 756 N.Y.S.2d 192 [2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003]; Del Rosario v. 114 Fifth Ave. Assoc., 266 A.D.2d 162, 699 N.Y.S.2d 19 [1999]). Further, the request, made in a footnote in plaintiff's opposition papers, was procedurally defective, as plaintiff was required to serve a notice of cross motion (CPLR 2215). In any event, the provision is inapplicable.

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