| Scott v Westmore Fuel Co., Inc. |
| 2012 NY Slip Op 04698 [96 AD3d 520] |
| June 12, 2012 |
| Appellate Division, First Department |
| Akron Scott, Appellant, v Westmore Fuel Company,Incorporated, et al., Respondents. (And a Third-Party Action.) |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas P. Hurzeler of counsel), forWestmore Fuel Company, Incorporated and Purdy Avenue Terminals, LLC, respondents. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus ofcounsel), for Diamondhead Construction & Maintenance Corp., respondent.
Order, Supreme Court, New York County (Norma Ruiz, J.), entered on or about January 21,2011, which, insofar as appealed from as limited by the briefs, dismissed plaintiff's Labor Law§ 241 (6) claim as asserted against all the defendants, unanimously modified, on the law,to deny summary judgment dismissing the claim insofar as it is predicated on 12 NYCRR 23-9.5(c), and otherwise affirmed, without costs.
Plaintiff was riding on the exterior step of a moving backhoe when he fell and the backhoeran over his left foot. The accident occurred at defendants Purdy Avenue Terminals andWestmore Fuel Company's (collectively Westmore) fuel tank facility. Westmore had retaineddefendant Diamondhead Construction & Maintenance Corp. (Diamondhead) to replace a rubbercontainment lining to prevent soil contamination from fuel leaks. Diamondhead subcontractedplaintiff's employer to perform the installation work.
The statutory protection of Labor Law § 241 (6) extends to the activity in whichplaintiff was engaged at the time of the accident, regardless of whether the backhoe was beingbrought from storage to the work site for use (see Gherardi v City of New York, 49 AD3d 280 [2008]), or takenaway from the work site for storage at the end of the work day (see Prats v Port Auth. of N.Y.& N.J., 100 NY2d 878, 881-882 [2003]; Danielewski v Kenyon Realty Co., 2 AD3d 666 [2003]). However,12 NYCRR 23-9.4 (a) is too general to support a Labor Law § 241 (6) claim (see Robinson v County of Nassau, 84AD3d 919, 921 [2011]; Brechue v Town of Wheatfield, 241 AD2d 935, 935 [1997],lv denied 94 NY2d 759 [2000]). 12 NYCRR 23-1.7 (b), 23-1.23 (a), 23-9.2 (h) (2),23-9.2 (i), 23-9.4 (c), 23-9.4 (h) (2) and 23-9.4 (h) (4) are inapplicable to the circumstances here.The exception for "excavating machines used for material hoisting" under 12 NYCRR 23-6.1 (a)bars application of 12 NYCRR 23-6.1 (c) and 12 NYCRR 23-6.1 (i) (see St. Louis v Town of N. Elba, 70AD3d 1250 [2010], affd 16 NY3d 411 [2011]).[*2]
Nonetheless, we find that plaintiff has a claim under 12NYCRR 23-9.5 (c), in view of plaintiff's testimony that he was not licensed or trained to operatea backhoe, and his foreman's testimony that plaintiff's responsibilities entailed primarilyexcavation work. Such evidence indicates that plaintiff was not part of the "operating crew" andthus, was not authorized to be on the backhoe while it was in motion or operation.
While plaintiff did not allege violation of 12 NYCRR 23-9.2 (b) (1) in his pleadings, heargues that this argument is raised in his expert affidavit. However, the court properly rejectedthe expert affidavit as inadmissible, given that the affidavit, which was notarized in New Jersey,was lacking a certificate of conformity (see CPLR 2309 [c]), and that plaintiff did notdisclose the expert until the filing of his affirmation in opposition, after the note of issue andcertificate of readiness had been filed (see CPLR 3101 [d] [1] [i]; Colon v Chelsea Piers Mgt., Inc., 50AD3d 616 [2008]; Safrin v DSTRussian & Turkish Bath, Inc., 16 AD3d 656 [2005]; cf. Baulieu v Ardsley Assoc., L.P., 85 AD3d 554, 555 [2011]). Inany event, 12 NYCRR 23-9.2 (b) (1) is a mere general safety standard that is insufficientlyspecific to give rise to a nondelegable duty under the statute (see Hricus v Aurora Contrs., Inc., 63 AD3d 1004, 1005 [2009]; Berg v Albany Ladder Co., Inc., 40AD3d 1282, 1285 [2007], affd 10 NY3d 902 [2008]).
The court also properly denied plaintiff's request to amend the bill of particulars to allegeviolation of 12 NYCRR 23-9.4 (h) (5), as such request, made after the note of issue was filed,was untimely and prejudicial (see Reilly v Newireen Assoc., 303 AD2d 214, 218 [2003],lv denied 100 NY2d 508 [2003]; Del Rosario v 114 Fifth Ave. Assoc., 266 AD2d162 [1999]). Further, the request, made in a footnote in plaintiff's opposition papers, wasprocedurally defective, as plaintiff was required to serve a notice of cross motion (CPLR 2215).In any event, the provision is inapplicable. Concur—Tom, J.P., Mazzarelli, Moskowitz,Renwick and Abdus-Salaam, JJ.