| McCoy v Metropolitan Transp. Auth. |
| 2010 NY Slip Op 05877 [75 AD3d 428] |
| July 1, 2010 |
| Appellate Division, First Department |
| Charles McCoy, Respondent, et al.,Plaintiff, v Metropolitan Transportation Authority et al., Appellants, et al.,Defendants. |
—[*1] Quirk & Bakalor, P.C., New York (Timothy J. Keane of counsel), for respondent.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or aboutSeptember 22, 2009, which, after a framed-issue hearing, held that the subject piece ofequipment that injured plaintiff Charles McCoy was a mobile crane within the meaning ofIndustrial Code (12 NYCRR) § 23-8.2, unanimously affirmed, without costs. Appeal fromorder, same court (Michael D. Stallman, J.), entered January 22, 2010, which denied defendants'motion, pursuant to CPLR 2221 (a), to vacate or modify the September 22, 2009 order,unanimously dismissed, without costs, as taken from a nonappealable paper.
The court correctly held, based on the evidence adduced at the framed-issue hearing, that thesubject equipment was a mobile crane for purposes of the Industrial Code regulations governingthe safe operation of mobile cranes, considering the manner in which the equipment was beingused at the time of plaintiff's injury. The term "mobile crane" is undefined in the Industrial Code,and plaintiff's expert witnesses provided persuasive testimony that the Gradall was functioningas a mobile crane at the time of plaintiff's accident, and that the Industrial Code provisionsgoverning mobile cranes could sensibly be applied to the Gradall in light of the manner it wasbeing used at the time (see Giordano vForest City Ratner Cos., 43 AD3d 1106, 1108 [2007]; Millard v City ofOgdensburg, 300 AD2d 1088, 1089 [2002], lv denied 303 AD2d 1060 [2003]).Defendants' expert testimony, in contrast, was unpersuasive and merely demonstrated that theGradall was manufactured, tested, and sold in conformity with industry safety standardsapplicable to manufacturers governing rough terrain forklift trucks and lacked certaincharacteristics essential to a particular subset of mobile cranes, but ignored that there are [*2]several categories of mobile cranes not all of which possess thesecharacteristics, that the Gradall is a multipurpose machine capable of functioning as both aforklift and a mobile crane depending on the type of attachment being used, and that theIndustrial Code was enacted before multipurpose machines such as the Gradall were developedand therefore such machines were not within the contemplation of the drafters.
Furthermore, to interpret the Industrial Code provisions governing mobile cranes asapplicable to the Gradall at issue here is entirely consistent with the statutory and regulatorypurposes behind Labor Law § 241 (6) and the Industrial Code—to protectconstruction workers against hazards in the workplace—and whether a regulation applieswill depend on how and for what purpose the equipment is used, not on its label or name (see Copp v City of Elmira, 31 AD3d899, 900 [2006]; see e.g. Borowicz v International Paper Co., 245 AD2d 682,683-684 [1997]; Smith v Hovnanian Co., 218 AD2d 68, 71-72 [1995]).
Defendants' motion pursuant to CPLR 2221 (a) to vacate or modify the September 22, 2009order was in actuality a motion to reargue, the denial of which is not appealable (see Matter of Goliger, 72 AD3d966 [2010]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Renwick, Freedman, Richter and Abdus-Salaam, JJ. [PriorCase History: 26 Misc 3d 286.]