| Catarino v State of New York |
| 2008 NY Slip Op 08186 [55 AD3d 467] |
| October 28, 2008 |
| Appellate Division, First Department |
| Edmundo Catarino et al., Respondents, v State of NewYork, Appellant. |
—[*1] Edelman & Edelman, P.C., New York (David M. Schuller of counsel), forrespondents.
Order of the Court of Claims of the State of New York (S. Michael Nadel, J.), entered June4, 2007, which denied the State's motion for summary judgment and granted claimants' motionfor partial summary judgment on liability, unanimously affirmed, without costs.
Claimant laborer was injured on a state-owned construction site and asserts a claim underLabor Law § 241 (6), premised on a violation of Industrial Code (12 NYCRR) §23-8.1 (f) (5), which provides that "[m]obile cranes, tower cranes and derricks shall not hoist,lower, swing or travel while any person is located on the load or hook." He testified that he wasstanding on top of a concrete box that had been unloaded from a flatbed truck to the ground by acrane. As he put his right hand on the cables between the hook and the cable block for balance,using his left hand to disconnect the crane's hook from the cables affixed to the box, the craneoperator, without warning, started reeling in the cable. Claimant's right hand was pulled into thecable block and crushed.
The State moved for summary judgment on the ground that section 23-8.1 (f) (5) wasinapplicable because the concrete box or load was not in motion at the time of the accident.However, the language of the regulation is not limited to situations where a person is on the loadwhile the load itself is being moved. The regulation also prohibits using the crane while a personis physically on the load. As claimant was injured when the crane was operated while he was onthe load, section 23-8.1 (f) (5) is clearly implicated.
The State also argues that the court erred in granting partial summary judgment on liability toclaimant because there are triable issues of fact concerning proximate cause, comparativenegligence, and whether reasonable safety measures were employed by the contractor. Violationof an administrative regulation promulgated pursuant to statute is simply some evidence ofnegligence. The owner or contractor may raise any valid defense to the imposition of vicariousliability under Labor Law § 241 (6), including contributory and comparative negligence(see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). Although thedefenses of reasonable safety measures, proximate cause and comparative negligence were [*2]raised, the State failed to present evidentiary proof sufficient topresent a triable issue of fact in response to claimant's prima facie demonstration of entitlementto judgment as a matter of law. Concur—Tom, J.P., Saxe, Williams, Catterson andMoskowitz, JJ.