| Carroll v County of Erie |
| 2008 NY Slip Op 00796 [48 AD3d 1076] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Joseph Carroll et al., Appellants, v County of Erie,Respondent. |
—[*1] Law Offices of Douglas Coppola, Buffalo (William K. Kennedy of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredJanuary 4, 2007 in a personal injury action. The order granted defendant's motion for summaryjudgment dismissing the amended complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Joseph Carroll (plaintiff) when the excavator nearwhich he was standing swivelled to pick up a manhole cover, whereupon the counterweight ofthe shovel arm struck plaintiff's shoulder. As limited by their brief, plaintiffs contend thatSupreme Court erred in granting that part of defendant's motion seeking summary judgmentdismissing the Labor Law § 241 (6) claim insofar as it is based on the alleged violations of12 NYCRR 23-9.2 (i), which prohibits persons from riding in the buckets of power-operatedequipment, and 12 NYCRR 23-9.4 (h) (4), which requires that unauthorized persons shall not bepermitted in the cab of equipment used for material handling or in the area immediately adjacentto such equipment. Contrary to plaintiffs' contention, the court properly determined thatdefendant established its entitlement to judgment as a matter of law with respect to that part of itsmotion, and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
Although plaintiff had ridden in the bucket of the excavator in violation of 12 NYCRR23-9.2 (i) in order to lower himself into the trench where the manhole was being installed andthen to raise himself out of the trench, he was no longer in the bucket at the time of the accident.Thus, defendant's alleged violation of 12 NYCRR 23-9.2 (i) was not a proximate cause ofplaintiff's injuries (see generally Egan vMonadnock Constr., Inc., 43 AD3d 692, 694 [2007]; Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733 [2007]).Although we agree with plaintiffs that 12 NYCRR 23-9.4 (h) (4) applies herein because theexcavator was being used at the time of the accident to handle materials, we reject plaintiffs'contention that plaintiff was an "[u]nauthorized person[ ]" within the meaning of that regulation(12 NYCRR 23-9.4 [h] [4]). Plaintiff was a [*2]member of thework crew on the site and was injured while removing a rod from the trench after using it tomeasure the grade. Thus, "[u]nder any view of the facts, plaintiff was not an 'unauthorized'person 'in the . . . [area] immediately adjacent to . . . [an excavator] inoperation' " (Mingle v Barone Dev. Corp. [appeal No. 2], 283 AD2d 1028, 1029 [2001]).Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.