TORRES v. SPRINGCREEK ASSOCIATES

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Supreme Court, Appellate Division, Fourth Department, New York.

Martin TORRES, Plaintiff-Appellant, v. SPRINGCREEK ASSOCIATES and Home Properties of New York, Inc., Defendants-Respondents.

Decided: June 14, 2002

Present:  WISNER, J.P., KEHOE, BURNS, and LAWTON, JJ. Ziller, Marsh, Lang, Small & Zweig, Buffalo (Steven M. Zweig of Counsel), for Plaintiff-Appellant. Brown & Kelly, LLP, Buffalo (Paula L. Feroleto of Counsel), for Defendants-Respondents.

Supreme Court erred in granting that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241(6) claim, and thus we modify the order by denying that part of defendants' motion and reinstating that claim.   Plaintiff was allegedly injured while jump-starting the engine of a backhoe during a paving project.   Defendants concede that the paving project falls within the parameters of Labor Law § 241(6), and we conclude that plaintiff's act in jump-starting the engine of the backhoe was an integral part of the paving project.   Thus, plaintiff's alleged injury is within the purview of Labor Law § 241(6) (see McCraw v. United Parcel Serv., 263 A.D.2d 499, 500, 692 N.Y.S.2d 739).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241(6) claim and reinstating that claim and as modified the order is affirmed without costs.

MEMORANDUM: