PICCOLO v. ST JOHN HOME FOR THE AGING (2004)

 Plaintiff commenced this action seeking damages for injuries he sustained when he fell to the ground from the bed of a flatbed truck. Plaintiff was holding a hose in order to wash certain water service parts, and his coworker operated the “flush truck” in order to provide water for plaintiff's task.   When no water was emitted from the hose, the coworker increased the valve pressure, resulting in a blast of air emitted from the hose that caused plaintiff to be lifted into the air and to fall to the ground.   Contrary to the contention of plaintiff, Supreme Court properly granted that part of the motion of St. John's Home for the Aging, doing business as St. John's Meadows, St. John's Meadows, Lahr Construction Corp., doing business as LeCesse Construction Company, and LeCesse Construction Company (defendants) seeking summary judgment dismissing his Labor Law § 240(1) claims against them.  “As this Court has previously determined, the surface of a flatbed truck does not constitute an elevated work surface for purposes of Labor Law § 240(1)․ Plaintiff's injur[ies] arose out of the ‘usual and ordinary dangers at a construction site,’ not an elevation-related risk” (Plump v. Wyoming County, 298 A.D.2d 886, 886-887, 748 N.Y.S.2d 195;  see Tillman v. Triou's Custom Homes, 253 A.D.2d 254, 257, 687 N.Y.S.2d 506). We further conclude that the court properly granted that part of the motion of defendants seeking summary judgment dismissing the common-law negligence cause of action and Labor Law § 200 claims against them.   Although defendant LeCesse Construction Company had authority to require the correction of safety violations, the record supports the contention of defendants that they did not direct, supervise or control plaintiff's work at the time of the accident (see Kazmierczak v. Town of Clarence, 286 A.D.2d 955, 956, 737 N.Y.S.2d 177).

 We conclude, however, that the court erred in granting that part of the motion of defendants seeking summary judgment dismissing the claims pursuant to Labor Law § 241(6) against them insofar as those claims are based on the alleged violation of 12 NYCRR 23-9.2(a), and we therefore modify the order accordingly.   That regulation provides, inter alia, that “[a]ll power-operated equipment shall be maintained in good repair and in proper operating condition at all times.”   We have previously determined that 12 NYCRR 23-9.2(a) is sufficiently specific to support a claim pursuant to section 241(6) (see Tillman, 253 A.D.2d at 258, 687 N.Y.S.2d 506;  Webber v. City of Dunkirk, 226 A.D.2d 1050, 1051, 641 N.Y.S.2d 927;  Zacher v. Niagara Frontier Servs., 210 A.D.2d 897, 897-898, 621 N.Y.S.2d 1015).  Section 241(6) imposes a nondelegable duty upon owners and general contractors, regardless of the level of control or supervision, to comply with the regulations of the Commissioner of the Department of Labor (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiff raised an issue of fact sufficient to defeat that part of the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiff submitted the deposition testimony of his coworker that it was the practice at the end of the work day to drain the pump and tank in the flush truck and to blow out the lines and hoses with an air compressor in order to prevent ice from forming in the hoses.   The coworker further testified that he believed that the hose did not work properly because it had not been cleaned well enough the night before, causing ice to form and preventing the flow of water.   We have reviewed plaintiff's remaining contentions with respect to the claims pursuant to section 241(6) and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the Labor Law § 241(6) claims against defendants St. John's Home for the Aging, doing business as St. John's Meadows, St. John's Meadows, Lahr Construction Corp., doing business as LeCesse Construction Company, and LeCesse Construction Company insofar as those claims are based on the alleged violation of 12 NYCRR 23-9.2(a) and as modified the order is affirmed without costs.

MEMORANDUM: