Webber v. City of Dunkirk

226 A.D.2d 1050, 641 N.Y.S.2d 927, 1996 N.Y. App. Div. LEXIS 5501

Opinions

Order affirmed without costs. Memorandum: Frederick Webber (plaintiff) was injured as he stood in front of a backhoe raking blacktop. The engine of the backhoe was running, and the operator was inside. The bucket of the backhoe was off the ground. As plaintiff was raking with his back to the backhoe, it moved forward, and one of its treads struck him on the back of his right leg. Plaintiff testified at his deposition that he did not know what had caused the backhoe to move forward. There is no affidavit or deposition testimony from the backhoe operator in the record.

Supreme Court properly denied that portion of defendant’s motion for summary judgment that sought dismissal of the cause of action under Labor Law § 241 (6). To establish a cause of action against a nonsupervising owner or contractor under that subdivision, a plaintiff must allege a violation of a specific regulatory requirement (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-505). The court properly determined that two of the regulations relied upon by plaintiffs, i.e., 12 NYCRR 23-4.2 (k) and 23-9.2 (b), are not sufficiently specific to support a cause of action under Labor Law § 241 (6) (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra). The court also properly determined that the third regulation relied upon by plaintiffs, i.e., 12 NYCRR 23-9.5 (c), is sufficiently specific to support the section 241 (6) cause of action. That regulation requires, inter alia, that the bucket of an excavating machine rest on the ground when the machine is not in use. We reject defendant’s contention that the machine was "in use” so that the regulation does not apply. An excavating machine need not be stopped or parked for it to be "not in use”; such reading would render 12 NYCRR 23-9.5 (f) superfluous. The machine was stationary while its operator waited for plaintiff and the other three laborers to rake the blacktop. A jury could find that, in those circumstances, the regulation requires that the bucket of the backhoe rest on the ground.

Although defendant contends that plaintiffs failed to demonstrate that the alleged violation was a proximate cause of the accident, defendant has not controverted the averment of plaintiffs’ expert that, had the bucket been resting on the ground, the backhoe could not have moved forward as it did. The court properly rejected plaintiffs’ contention that the operator should have left the bucket on the ground while moving the backhoe forward so that the bucket would have made a scraping sound to alert plaintiff.

Plaintiffs’ contention that defendant also violated 12 NYCRR 23-9.2 (a), which is sufficiently specific to support a cause of action under section 241 (6) (see, Zacher v Niagara Frontier Servs., 210 AD2d 897, 897-898), was raised for the first time in opposition to defendant’s motion to reargue and therefore was properly not considered by the court.

All concur except Lawton and Balio, JJ., who dissent in part and vote to modify in the following Memorandum.