| St. Louis v Town of N. Elba |
| 2010 NY Slip Op 01415 [70 AD3d 1250] |
| February 18, 2010 |
| Appellate Division, Third Department |
| Ryan P. St. Louis, Respondent, v Town of North Elba etal., Appellants. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (Sarah I. Goldman of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Meyer, J.), entered July 6, 2009 inEssex County, which denied defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff was injured while assisting in the construction of a pipeline on property owned bydefendant Town of North Elba. In the course of that work, a section of pipe was suspended a fewfeet above the ground in the jaws of the clamshell bucket of a front-end loader. When plaintiffhit the pipe with a hammer to remove excess welding material, the pipe dropped from theloader's bucket, struck his legs and injured him. Plaintiff commenced this action alleging, aspertinent here, a violation of Labor Law § 241 (6). Following joinder of issue anddiscovery, defendants moved for summary judgment dismissing the claim, and Supreme Courtdenied the motion. Defendants now appeal.
To establish a claim under Labor Law § 241 (6), plaintiff must allege that defendantsviolated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specificstandard of conduct (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502[1993]). 12 NYCRR 23-6.1 applies "to all material hoisting equipment except . . .[hoisting equipment covered under other, separate regulations, such as] excavating machinesused for material hoisting." In view of that, plaintiff predicates his cause of action upon aviolation of 12 NYCRR 23-9.4 which, in pertinent part, provides:
"Where power shovels and backhoes are used for [*2]material handling, such equipment and the use thereof shall be inaccordance with the following provisions: . . .
"(e) Attachment of load.
"(1) Any load handled by such equipment shall be suspended from the bucket or bucket armby means of wire rope having a safety factor of four." Although defendants contend that this regulation is inapplicable because the front-end loaderholding the pipe that fell on plaintiff was neither a power shovel nor a backhoe, we have heldthat the applicability of this regulation turns upon the manner in which the equipment is usedrather than its name or label (see Coppv City of Elmira, 31 AD3d 899, 900 [2006]; Borowicz v International PaperCo., 245 AD2d 682, 684 [1997]; Smith v Hovnanian Co., 218 AD2d 68, 71 [1995]).
Here, the front-end loader plainly was an "[e]xcavating machine" inasmuch as that term isdefined by 12 NYCRR 23-1.4 (b) (18) as a "power-driven vehicle equipped to excavate, push,grade or elevate earth, rock or other material." In addition, the loader's clamshell bucket wasbeing used as a hoist to handle and suspend the pipe, and the references in 12 NYCRR 23-9.4 tohoisting make clear that material handling includes hoisting. Inasmuch as an excavating machinewas being used to hoist construction material and the material was suspended from the bucketwithout the aid of wire rope, Supreme Court correctly concluded that plaintiff has a cause ofaction under Labor Law § 241 (6).[FN*]
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: To the extent that the SecondDepartment's decision in Phillips v City of New York (228 AD2d 570 [1996]) reaches acontrary conclusion regarding a loader, we decline to follow it.