| Hricus v Aurora Contrs., Inc. |
| 2009 NY Slip Op 05294 [63 AD3d 1004] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Maud Hricus et al., Appellants, v Aurora Contractors, Inc.,et al., Respondents. (And a Third-Party Action.) |
—[*1] Brown Gavalas & Fromm LLP, New York, N.Y. (David H. Fromm and Donald P.Blydenburgh of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), datedJanuary 17, 2008, as granted that branch of the motion of the defendant School ConstructionConsultants, Inc., and that branch of the cross motion of the defendant Aurora Contractors, Inc.,which were for summary judgment dismissing the Labor Law § 241 (6) cause of actioninsofar as asserted against each of them, and denied the plaintiffs' separate cross motion forsummary judgment dismissing the defendants' affirmative defense alleging comparativenegligence.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthat branch of the motion of the defendant School Construction Consultants, Inc., and thatbranch of the cross motion of the defendant Aurora Contractors, Inc., which were for summaryjudgment dismissing so much of the Labor Law § 241 (6) cause of action as was premisedupon a violation of 12 NYCRR 23-9.2 (a), and substituting therefor provisions denying thosebranches of the motion and cross motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
On May 22, 2003, the plaintiff Maud Hricus (hereinafter the plaintiff), a laborer thenemployed by the third-party defendant Cord Contracting Co., Inc., allegedly was injured whilehelping an apprentice install sheetrock at a construction site in Farmingville. According to theplaintiff, the apprentice was at the controls of a forklift when the forklift jerked forward andbriefly pinned the plantiff against a beam. The defendant Aurora Contractors, Inc., was thegeneral contractor, while the defendant School Construction Consultants, Inc., was theconstruction manager at the site. The plaintiff and her husband, suing derivatively, commencedthis action against both defendants. The complaint included, inter alia, a Labor Law § 241(6) cause of action.
The plaintiffs' contention that the Labor Law § 241 (6) cause of action is properlypredicated on violations of 12 NYCRR 23-9.2 (b) (1) is without merit. "Labor Law § 241(6) 'imposes a nondelegable duty upon owners and contractors to provide reasonable andadequate protection and safety [*2]to construction workers'. . . In order to recover damages on a cause of action alleging a violation of LaborLaw § 241 (6), a plaintiff must establish the violation of an Industrial Code provisionwhich sets forth specific safety standards" (Fitzgerald v New York City School Constr.Auth., 18 AD3d 807, 808 [2005] [citations omitted]; see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 349 [1998]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d494, 503 [1993]). 12 NYCRR 23-9.2 (b) (1) is merely a general safety standard that does notgive rise to a nondelegable duty under the statute (see e.g. Berg v Albany Ladder Co.,Inc., 40 AD3d 1282, 1285 [2007], affd 10 NY3d 902 [2008]).
Additionally, under the circumstances presented here, 12 NYCRR 23-9.8 (c) cannotconstitute an appropriate basis for the Labor Law § 241 (6) cause of action. That provisionmandates that "[e]very power-operated fork and lift truck shall be provided with a lockablebrake. The load-elevating mechanism shall be capable of being locked at any elevation." In thismatter, deposition testimony relied on by the defendants reflects that the plaintiff attributed thealleged accident to factors unrelated to problems with the braking mechanism. Indeed, herdeposition transcript is devoid of any references to a brake problem, and to the extent that sheasserts on appeal that certain testimony could be construed to imply such a problem, thetestimony relied upon is speculative, and thus insufficient, to withstand summary judgment(see generally Mondelli v County of Nassau, 49 AD3d 826, 827 [2008]).
However, that portion of 12 NYCRR 23-9.2 (a) which imposes "an affirmative duty onemployers to 'correct[ ] by necessary repairs or replacement,' 'any structural defect or unsafecondition' in equipment or machinery '[u]pon discovery' or actual notice of the structural defector unsafe condition," sets forth safety standards specific enough to permit recovery under LaborLaw § 241 (6) (Misicki v Caradonna, 12 NY3d 511, 521 [2009]). Accordingly, theSupreme Court erred in awarding summary judgment to the defendants dismissing so much ofthe Labor Law § 241 (6) cause of action as was premised upon violation of 12 NYCRR23-9.2 (a).
Since there are triable issues of fact as to whether the plaintiff was comparatively negligent(see Edwards v C&D Unlimited, 295 AD2d 310, 311 [2002]), the plaintiffs' separatecross motion for summary judgment dismissing that affirmative defense, as alleged by both ofthe defendants, was properly denied. Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.