Adrian MARTINEZ, Plaintiff v. HITACHI CONSTRUCTION MACHINERY CO., LTD., Formula Equipment, Inc., f/k/a Formula Equipment Leasing, Inc., Kids Waterfront Corp., and Sanzo Enterprises, Inc., Defendants.
Plaintiff, an employee of defendant Kids Waterfront Corp., sues to recover for traumatic personal injuries, including bilateral amputation of his legs, from an excavator owned by defendant Sanzo Enterprises, Inc., and operated by Jose Ochoa, a co-employee of Kids Waterfront. Sanzo Enterprises has moved for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). For the reasons explained below, the court grants Sanzo Enterprises' motion to the extent set forth and otherwise denies the motion. C.P.L.R. § 3212(b) and (e).
I. UNDISPUTED BACKGROUND FACTS
On November 8, 2002, Kids Waterfront operated a solid waste transfer station at 1264 Viele Avenue, Bronx County, which received and transferred demolition debris. On that date Kids Waterfront employed plaintiff as a yard worker who cleaned and organized the dumped demolition debris and the area where it was transferred, by manually sorting through large piles of dirt, rock, and garbage and removing the garbage, such as metal, wood, and plastic materials. Sanzo Enterprises operated as a carting company transporting demolition debris to Kids Waterfront's transfer station where Sanzo Enterprises dumped the debris and where it was sorted and then transported to a landfill.
Plaintiff was injured at approximately 9:00 a.m. when he was standing on a pile of debris that Ochoa was sorting with the excavator, and the grapple attached to the excavator grabbed and severed plaintiff's legs. Sanzo Enterprises owned the excavator and its attachments. There was no visible, audible, or other warning on the excavator or its grapple as it approached plaintiff behind him.
II. PLAINTIFF'S CLAIMS AGAINST SANZO ENTERPRISES
Plaintiff claims three bases for defendant Sanzo Enterprises' liability for his injuries. First, plaintiff claims the excavator was a motor vehicle under New York Vehicle and Traffic Law (VTL) § 125, and as the vehicle owner, Sanzo Enterprises is liable for Ochoa's unsafe operation of the vehicle. VTL § 388(1). Second, plaintiff claims that even if the excavator does not qualify as a vehicle under VTL § 125, Sanzo Enterprises negligently entrusted this dangerous equipment to an untrained operator. Third, plaintiff claims Sanzo Enterprises, by authorizing and knowingly permitting the excavator's use under the conditions Ochoa used the equipment at his and plaintiff's worksite, violated New York Labor Law §§ 200 and 241(6).
A. NEGLIGENT OPERATION OF A MOTOR VEHICLE
For defendant to defend successfully against its liability for Ochoa's operation of a motor vehicle, VTL § 388(1), defendant must establish conclusively that (1) it did not permit Ochoa to use the excavator; or (2) Ochoa did not operate it negligently or unsafely; or (3) the excavator was not a motor vehicle. Since defendant admits it permitted Ochoa to use the excavator and makes no attempt to show his use was not negligent or hazardous, defendant must rely on the third ground for a defense to plaintiff's claim of negligent operation.
1. Whether Defendant's Excavator Was a Motor Vehicle
Vehicle and Traffic Law § 125 defines “motor vehicles” under the VTL as:
Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power
․ For the purposes of titles four and five the term motor vehicles shall exclude ․ self-propelled caterpillar or crawler-type equipment while being operated on the contract site.
As VTL § 388 is in Title III of the VTL, § 125's exception for “caterpillar or crawler-type equipment” does not exclude this equipment from motor vehicles under § 388. Section 388(2), however, contains its own exceptions:
As used in this section, “vehicle” means a “motor vehicle,” as defined in section one hundred twenty-five
․ For the purpose of this section, self-propelled caterpillar or crawler-type equipment while being operated on the contract site, shall not be defined as motor vehicles.
Plaintiff does not dispute defendant's evidence, through Ochoa's deposition testimony, that defendant's excavator was similar to caterpillar equipment. If so, that equipment's exclusion from both §§ 125 and 388(2) only under specified circumstances and its inclusion within the broad definition of any “vehicle ․ propelled by any power other than muscular power” compel the conclusion that, if not within the exclusion and if operated on a “public highway,” caterpillar or similar equipment is a “motor vehicle.” VTL § 125; Matter of Vincent H., 3 Misc.3d 900, 903, 775 N.Y.S.2d 457 (Fam. Ct. Queens Co.2004). See Harper v. Lumbermen's Mut. Cas. Co., 174 A.D.2d 1031, 1032, 572 N.Y.S.2d 195 (4th Dep't 1991). The court need not definitively determine whether defendant's excavator was “caterpillar or crawler-type equipment,” however, since defendant presents no evidence indicating Ochoa was operating the excavator on a “contract site” November 8, 2002. VTL § 388(2).
The VTL does not define “contract site,” although VTL §§ 311(2) and 359(k), like § 388(2), both use the term to delineate the circumstances where caterpillar or similar equipment is excluded from “motor vehicles.” Neither those sections' context nor their history, however, is instructive as to the meaning of “contract site.”
The only other VTL provision that uses the term, § 401(7)(K), uses the term to exclude that equipment from increased registration fees for heavy duty vehicles. Despite that different purpose, this section's history proves more instructive.
Section 401(7) derives from § 11 of the VTL of 1929, which as of 1956 included a subdivision 17 pertaining to the registration of “earth-moving” equipment operated on a public highway. Like the current § 401(7)(K), subdivision 17 relaxed the registration requirements for that equipment when operated “for the purpose of construction or reconstruction of a public highway ․ pursuant to a contract with the state, a municipality or a public corporation” on the “contract site.”
While no evidence indicates Ochoa was operating defendant's excavator on a contract site under any contract with a public entity for construction or reconstruction of a public highway, to qualify as a motor vehicle under VTL §§ 125 and 388(1) he must have been operating the excavator on a “public highway.” Vehicle and Traffic Law § 134 does define that term, comprehensively, as any “highway, road, street, avenue, alley, public place, public driveway or any other public way.”
Both plaintiff and defendant present little evidence shedding light on whether Ochoa was operating defendant's excavator within VTL § 134' s broad ambit. See People v. Thew, 44 N.Y.2d 681, 682, 405 N.Y.S.2d 433, 376 N.E.2d 906 (1978); County of Westchester v. Winstead, 231 A.D.2d 630, 647 N.Y.S.2d 536 (2d Dep't 1996); People v. Haszinger, 149 Misc.2d 856, 859, 567 N.Y.S.2d 575 (Dist. Ct. Nassau Co.1991); People v. Kolinsky, 111 Misc.2d 633, 636, 444 N.Y.S.2d 845 (Crim. Ct. Queens Co.1981). The only fact, albeit undisputed, is that the excavator was in operation at a solid waste transfer facility. No evidence reveals whether the area around the piles of debris was paved, was adjacent to or accessible from a road, or was open to public passage. People v. Thew, 44 N.Y.2d at 682, 405 N.Y.S.2d 433, 376 N.E.2d 906; People v. Moore, 196 Misc.2d 340, 342, 765 N.Y.S.2d 218 (Justice Ct. Tompkins Co.2003); People v. Haszinger, 149 Misc.2d 856, 858-59, 567 N.Y.S.2d 575 (Dist. Ct. Nassau Co.1991); People v. Edsall, 111 Misc.2d 767, 769, 444 N.Y.S.2d 994 (Town Ct. Schuyler Co.1981). The area need not be open to vehicular traffic to be a “public place” or “public way.” VTL § 134; County of Westchester v. Winstead, 231 A.D.2d 630, 647 N.Y.S.2d 536; Matter of Vincent H., 3 Misc.3d at 904, 775 N.Y.S.2d 457.
Moreover, in determining whether an area qualifies as a “public place” or “public way,” a key criterion is whether the area is exclusively for the benefit of the private owner and its invitees, and the private owner alone regulates the area's availability and operations. VTL § 134; People v. Moore, 196 Misc.2d at 342, 765 N.Y.S.2d 218; People v. Haszinger, 149 Misc.2d at 858, 567 N.Y.S.2d 575. See People v. Edsall, 111 Misc.2d at 768-69, 444 N.Y.S.2d 994; People v. Kolinsky, 111 Misc.2d at 636-37, 444 N.Y.S.2d 845. If the state regulates the area or otherwise has a demonstrated interest in the area for purposes of public health or safety, or the public is permitted to use the area, even if restricted by a permit, fee, or other limitations, such circumstances confer a sufficient public “right of passage” to qualify the area as a public highway. People v. Thew, 44 N.Y.2d at 682, 405 N.Y.S.2d 433, 376 N.E.2d 906; People v. Haszinger, 149 Misc.2d at 858, 567 N.Y.S.2d 575; People v. Ostermeier, 118 Misc.2d 68, 71, 460 N.Y.S.2d 238 (County Ct. Suffolk Co.1983); People v. Edsall, 111 Misc.2d at 768-69, 444 N.Y.S.2d 994. See People v. Kolinsky, 111 Misc.2d at 636-37, 444 N.Y.S.2d 845.
New York's solid waste transfer facilities bear indicia of a “public place” or “public way.” VTL § 134; People v. Moore, 196 Misc.2d at 342, 765 N.Y.S.2d 218; People v. Haszinger, 149 Misc.2d at 858, 567 N.Y.S.2d 575. See People v. Edsall, 111 Misc.2d at 768-69, 444 N.Y.S.2d 994; People v. Kolinsky, 111 Misc.2d at 636-37, 444 N.Y.S.2d 845. Solid waste transfer stations may operate in this state only with a permit from the New York State Department of Environmental Conservation (DEC), consistent with New York Environmental Conservation Law (ECL) § 27-0106's objectives, and in full compliance with DEC rules. ECL §§ 27-0101(2), 27-0707(1), (2)(a) and (c)(1), and (5), 27-0703(2). DEC specifically must approve a transfer station's acceptance of demolition debris. 6 N.Y.C.R.R. § 360-11.4(a). Where solid waste passes through the transfer station to be disposed of at another site, DEC or another governmental agency, if the other site is not in New York, also must authorize that site. 6 N.Y.C.R.R. § 360-11.4(b).
First, DEC rules repeatedly contemplate and regulate the safe, unobstructed, and efficient flow of vehicular traffic on on-site paved roadways in transfer stations and parking lots there, as well as entrances and exits from adjacent roadways. 6 N.Y.C.R.R. §§ 360-1.14(j) and (n); 360-11.2(a)(2)(i) and (3)(iii) and (vi); 360-11.3(a)(1) and (7) and (b); 360-11.4(m)(4). See People v. Kolinsky, 111 Misc.2d at 636-37, 444 N.Y.S.2d 845. Any malfunctioning equipment specifically must be remedied to ensure against hazards. 6 N.Y.C.R.R. § 360-1.14(f)(3).
The rules further regulate public health and safety. They control solid waste storage, removal, recycling, and salvaging; litter, dust, insects, odors, noise, and other vectors or nuisances; open burning and fires; exhaust, leakage, and other discharges; drainage; soil erosion; and ponding, other surface water, and groundwater within a transfer station and adjacent public and private water supplies. 6 N.Y.C.R.R. §§ 360-1.14(b), (e)(3), (f)(1), (i)(4), (j)-(m), (p), (q), and (v); 360-11.2(a)(2)(iv); 360-11.3(a)(2), (5), and (6); 360-11.4(e)-(h), (k), (l ), and (n)(3). See People v. Haszinger, 149 Misc.2d at 858, 567 N.Y.S.2d 575; People v. Kolinsky, 111 Misc.2d at 636, 444 N.Y.S.2d 845. Finally, the rules contemplate and regulate public access, by allowing public dumping, requiring notice of when and what solid waste is accepted, requiring separate access for passenger vehicles, and allowing but controlling roadways passing through a transfer station. 6 N.Y.C.R.R. §§ 360-1.14(c)-(e)(1) and (n); 360-11.3(b)(2); 360-11.4(d). See People v. Edsall, 111 Misc.2d at 768-69, 444 N.Y.S.2d 994.
Thus, the sole fact that Ochoa was operating defendant's excavator in a solid waste transfer station indicates the excavator may have been in a public way or place. Given this undisputed fact, the absence of evidence that the excavator was on a governmental highway construction contract site, and the excavator's undisputed qualification as a motor vehicle in all other respects, defendant has not met its burden to establish that the excavator was not a motor vehicle under VTL §§ 125 and 388.
2. Defendant's Liability for Ochoa's Use of a Vehicle
Since Ochoa was plaintiff's co-employee of Kids Waterfront when plaintiff was injured in the course of both his and Ochoa's employment, New York Workers' Compensation Law § 29(6) would bar any claim by plaintiff directly against Ochoa. While defendant Sanzo Enterprises was not plaintiff's employer, the issue remains whether defendant may be vicariously liable for Ochoa's negligence, for which plaintiff may not sue Ochoa directly. NY Workers' Comp. Law § 29(6); Macchirole v. Giamboi, 97 N.Y.2d 147, 149-50, 736 N.Y.S.2d 660, 762 N.E.2d 346 (2001); Heritage v. Van Patten, 59 N.Y.2d 1017, 1019, 466 N.Y.S.2d 958, 453 N.E.2d 1247 (1983); Raptis v. Juda Constr., Ltd., 26 A.D.3d 153, 155, 810 N.Y.S.2d 22 (1st Dep't 2006); Lotysz v. Montgomery, 309 A.D.2d 628, 766 N.Y.S.2d 28 (1st Dep't 2003). See Negron v. Rodriguez & Rodriguez Stor. & Warehouse, Inc., 23 A.D.3d 159, 160, 806 N.Y.S.2d 180 (1st Dep't 2005); Flood v. Berk, 301 A.D.2d 361, 362, 753 N.Y.S.2d 70 (1st Dep't 2003).
Had plaintiff claimed only defendant's vicarious liability for Ochoa's negligence, Workers' Compensation Law § 29(6) would bar plaintiff's claim. Tikhonova v. Ford Motor Co., 4 N.Y.3d 621, 624-25, 797 N.Y.S.2d 799, 830 N.E.2d 1127 (2005); Chiriboga v. Ebrahimoff, 281 A.D.2d 353, 354, 722 N.Y.S.2d 533 (1st Dep't 2001); Rose v. Gelco Corp., 261 A.D.2d 381, 382, 688 N.Y.S.2d 259 (2d Dep't 1999); Trizzino v. Mildank Taxi Corp., 128 A.D.2d 607, 608, 512 N.Y.S.2d 864 (2d Dep't 1987). Here, however, plaintiff claims defendant's affirmative negligence in permitting Ochoa to use the excavator without adequate training and safety precautions. Although plaintiff also claims defendant's negligence in entrusting this dangerous equipment to an untrained operator, independent of plaintiff's reliance on VTL §§ 125 and 388(1), nothing bars a separate, similar claim under VTL § 388(1). If a vehicle owner's “affirmative negligence,” rather than purely vicarious liability for the vehicle operator's negligence, carries any meaning under § 388(1), it is precisely that the owner knowingly permitted the operator's use of the vehicle under circumstances that foreseeably exposed persons to injury. Nunez v. Jenkins, 8 A.D.3d 151, 779 N.Y.S.2d 55 (1st Dep't 2004); Chiriboga v. Ebrahimoff, 281 A.D.2d at 354, 722 N.Y.S.2d 533; Rascoe v. Riteway Rentals, 176 A.D.2d 552, 575 N.Y.S.2d 17 (1st Dep't 1991). See Kobre v. United Jewish Appeal-Fedn. of Jewish Philanthropies, 288 A.D.2d 158, 159, 734 N.Y.S.2d 12 (1st Dep't 2001); Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d 507, 508, 591 N.Y.S.2d 189 (2d Dep't 1992); Carpenter v. Miller, 132 A.D.2d 859, 860-61, 518 N.Y.S.2d 67 (3d Dep't 1987).
VTL 388(1) not only imposes liability on a vehicle owner for the operator's negligence, but “also seeks to discourage owners from permitting people ․ who might engage in unreasonably dangerous activities to use their vehicles,” Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 562, 693 N.Y.S.2d 493, 715 N.E.2d 495 (1999), and to encourage owners instead to exercise a “heightened degree of care ․ when selecting and supervising drivers permitted to operate their vehicles.” Murdza v. Zimmerman, 99 N.Y.2d 375, 379, 756 N.Y.S.2d 505, 786 N.E.2d 440 (2003). See id. at 379 n. 3, 756 N.Y.S.2d 505, 786 N.E.2d 440; Fried v. Seippel, 80 N.Y.2d 32, 42, 587 N.Y.S.2d 247, 599 N.E.2d 651 (1992); Conte v. Aprea, 23 A.D.3d 225, 227, 803 N.Y.S.2d 557 (1st Dep't 2005). Until defendant establishes the absence of defendant's own, direct negligence, or plaintiff fails to establish that independent negligence at trial, his claim under VTL § 388(1) is not barred by Workers' Compensation Law § 29(6) and must be sustained. Nunez v. Jenkins, 8 A.D.3d 151, 779 N.Y.S.2d 55; Kobre v. United Jewish Appeal-Fedn. of Jewish Philanthropies, 288 A.D.2d 158, 734 N.Y.S.2d 12; Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d at 508, 591 N.Y.S.2d 189; Carpenter v. Miller, 132 A.D.2d at 861, 518 N.Y.S.2d 67.
B. NEGLIGENT ENTRUSTMENT
For defendant to defend successfully against plaintiff's claim of defendant's negligence in entrusting the excavator to Ochoa, defendant must establish conclusively that (1) it did not place the excavator in Ochoa's control; or (2) the excavator was not a dangerous piece of equipment; or (3) defendant had no reason to believe Ochoa would use the excavator negligently or dangerously. Defendant neither denies permitting Ochoa's use of the excavator, nor attempts to show the excavator was reasonably safe even if misused, as plaintiff's injuries themselves belie such a position. Thus defendant relies exclusively on the third ground for a defense to plaintiff's negligent entrustment claim.
The owner of dangerous equipment has the duty to entrust it to a person whose use will not create an unreasonable risk of harm to other persons. Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 236, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); Myers v. 149 Automotive, Inc., 295 A.D.2d 104, 105, 743 N.Y.S.2d 37 (1st Dep't 2002); Guay v. Winner, 189 A.D.2d 1081, 1083, 593 N.Y.S.2d 95 (3d Dep't 1993); Splawnik v. Di Caprio, 146 A.D.2d 333, 335-36, 540 N.Y.S.2d 615 (3d Dep't 1989). See Barocas v. F.W. Woolworth Co., 207 A.D.2d 145, 148, 622 N.Y.S.2d 5 (1st Dep't 1995). Thus defendant must establish it lacked knowledge or reason to know that Ochoa's use of the excavator was unreasonably hazardous, Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d at 237, 727 N.Y.S.2d 7, 750 N.E.2d 1055; Myers v. 149 Automotive, Inc., 295 A.D.2d at 105, 743 N.Y.S.2d 37; Splawnik v. Di Caprio, 146 A.D.2d at 335, 540 N.Y.S.2d 615, due to deficiencies either in his training, experience, or conduct or in the excavator's operation. Rios v. Smith, 95 N.Y.2d 647, 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156 (2001); Troncoso v. Home Depot, U.S.A., Inc., 258 A.D.2d 644, 645, 685 N.Y.S.2d 797 (2d Dep't 1999); Guay v. Winner, 189 A.D.2d at 1083, 593 N.Y.S.2d 95; Zara v. Perzan, 185 A.D.2d 236, 237, 586 N.Y.S.2d 139 (2d Dep't 1992). See Barocas v. F.W. Woolworth Co., 207 A.D.2d at 148, 622 N.Y.S.2d 5.
Regarding Ochoa's competence, defendant points to his testimony that before Ochoa was employed by defendant, he operated a caterpillar machine similar to defendant's excavator; when he began his employment with Kids Waterfront, he was tested in his use of the excavator; and for over two years before plaintiff's injury, he operated defendant's excavator full time. While this testimony may show Ochoa's experience in operating the excavator, neither this nor any other evidence establishes that he was trained, knowledgeable, or experienced in the excavator's safe operation or use. Even if the machine he operated before his employment with Kids Waterfront was identical to Sanzo Enterprises' excavator, nothing demonstrates he knew how to operate the machine safely or in fact operated it safely. Nothing indicates who tested him in the excavator's use or, most significantly, what the test results were. Similarly, just as he may have started out operating the excavator without the requisite knowledge or training, his two years of experience simply may have been in operating the excavator unknowledgeably, unsafely, and negligently, reinforcing unsafe and negligent habits.
Sanzo Enterprises does not dispute that Ochoa never operated any type of excavator before operating defendant's excavator. Plaintiff, moreover, points to Ochoa's further testimony that the prior machines Ochoa did operate were not heavy construction or demolition equipment, but consisted of a bulldozer, backhoe, and rubber loader. Although the testing administered to Ochoa is unspecified, it lasted less than an hour and did not include any written component. Ochoa was unable to read English and hence never read any manuals or warnings pertaining to the excavator, nor were any read to him. Carmine Sanzo, Sanzo Enterprises' Vice President, further admitted that he never instructed Ochoa to read anything, nor read anything to him, pertaining to the excavator. Nor did defendant provide Ochoa any training, whether through a seminar or video presentation, on the job, or otherwise.
Regarding the excavator's operation, Ochoa explained that the grapple struck plaintiff because Ochoa was blinded by sun glare, as occurred during the early hours every morning when the excavator cab was facing toward the southeast. Ochoa previously had informed Carmine Sanzo that the sun glare obstructed Ochoa's visibility as Ochoa operated the excavator. Defendant took no measures, however, either to remedy the sun glare with protective equipment or to control the hours or way Ochoa operated the excavator. Rios v. Smith, 95 N.Y.2d at 653, 722 N.Y.S.2d 220, 744 N.E.2d 1156.
In light of this evidence, plaintiff at minimum has raised issues whether defendant knowingly furnished the excavator to an operator who was inexperienced in its safe use and unable to understand all the dangers posed or the necessary safety precautions. Splawnik v. Di Caprio, 146 A.D.2d at 336, 540 N.Y.S.2d 615. In addition, when the operator brought a specific danger and need for protective measures to defendant's attention, defendant could have foreseen clearly that his use of excavator, particularly in the early mornings and on sunny days, was likely to be dangerous to other workers nearby. Yet defendant took no precaution. Rios v. Smith, 95 N.Y.2d at 653-54, 722 N.Y.S.2d 220, 744 N.E.2d 1156. Therefore plaintiff's negligent entrustment claim must proceed to trial as well.
C. LABOR LAW § 241(6)
Labor Law § 241 requires that:
All contractors and owners and their agents, ․ when constructing or demolishing buildings or doing any excavation in connection therewith, shall comply with the following requirements:
6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein․ The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work ․ shall comply therewith.
The duty to comply with the regulations under Labor Law § 241(6) is non-delegable, subjecting both the owner of the premises and its agents to liability for a violation even if they exercised no supervision or control over the worksite and had no notice of worksite conditions. Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-503, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). While a failure to take the safety measures required by this statute, proximately causing injury, does not impose absolute liability absent negligence, the statute imposes liability on the owner and its agents for injuries caused by another party's negligence regardless of these defendants' own negligence. Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 349-50, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 502 n. 4, 601 N.Y.S.2d 49, 618 N.E.2d 82.
Even upon defendant's summary judgment motion, plaintiff, to support his Labor Law § 241(6) claim, must articulate a New York State Department of Labor safety regulation affirmatively mandating specific, concrete conduct or conditions that apply to the work at plaintiff's worksite and that defendant violated. Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d at 878, 609 N.Y.S.2d 168, 631 N.E.2d 110; Vaneer v. 993 Intervale Ave. Hous. Dev. Fund Corp., 5 A.D.3d 161, 163, 773 N.Y.S.2d 7 (1st Dep't 2003); Pesca v. City of New York, 298 A.D.2d 292, 293, 749 N.Y.S.2d 26 (1st Dep't 2002); Kerr v. Louisville Hous., 2 A.D.3d 924, 926-27, 769 N.Y.S.2d 616 (3d Dep't 2003). See Rizzuto v. Wenger Contr. Co., 91 N.Y.2d at 349, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 504-505, 601 N.Y.S.2d 49, 618 N.E.2d 82; Messina v. City of New York, 300 A.D.2d 121, 122, 752 N.Y.S.2d 608 (1st Dep't 2002); Fitzgerald v. New York City School Constr. Auth., 18 A.D.3d 807, 808, 796 N.Y.S.2d 694 (2d Dep't 2005). This burden falls on plaintiff because it is a pleading requirement, as well as a burden of proof. Walker v. Metro-North Commuter R.R., 11 A.D.3d 339, 340, 783 N.Y.S.2d 362 (1st Dep't 2004); Reilly v. Newireen Assoc., 303 A.D.2d 214, 218, 756 N.Y.S.2d 192 (1st Dep't 2003); Padilla v. Frances Schervier Hous. Dev. Fund Corp., 303 A.D.2d 194, 196 & n. 13, 758 N.Y.S.2d 3 (1st Dep't 2003); Pesca v. City of New York, 298 A.D.2d at 293, 749 N.Y.S.2d 26.
Only in response to interrogatories served by former defendant Formula Equipment, Inc., and submitted only in support of Formula Equipment's separate, withdrawn motion for summary judgment, does plaintiff allege any regulations violated, and these allegations set forth only Formula Equipment's violations. The regulations plaintiff cites, moreover, 12 N.Y.C.R.R. §§ 23-1 and 23-9 “and all the sub-sections thereunder,” were not in effect in 2002. Aff. of Craig A. Lamster, Ex. C at 6. His reference to “sub-sections thereunder” assuredly compels the interpretation that 23-1 and 23-9 refer to sections under which any subsections would fall. Insofar as plaintiff may have intended to refer to 12 N.Y.C.R.R. subpts. 23-1 and 23-9, however, such a blunderbuss citation to the over 100 sections and subsections in those subparts hardly would satisfy the specificity requirement under Labor Law § 241(6). Walker v. Metro-North Commuter R.R., 11 A.D.3d at 340, 783 N.Y.S.2d 362; Reilly v. Newireen Assoc., 303 A.D.2d at 218, 756 N.Y.S.2d 192; Padilla v. Frances Schervier Hous. Dev. Fund Corp., 303 A.D.2d at 196 n. 1, 758 N.Y.S.2d 3; Pesca v. City of New York, 298 A.D.2d at 293, 749 N.Y.S.2d 26.
None of the “GENERAL PROVISIONS” in 12 N.Y.C.R.R. §§ 23-1.1-23-1.34, comprising subpart 23-1, appears to apply to plaintiff's worksite in any event. 12 N.Y.C.R.R. § 23-9.2(a), under subpart 23-9, requires adequate inspections, maintenance, and repair of power operated equipment and the maintenance and repair by or under the supervision of designated persons. Section 23-9.2(b)(1) similarly requires safe operation of the equipment by trained designated persons, but this provision is insufficiently specific or concrete to support a claim under Labor Law § 241(6). Thompson v. Ludovico, 246 A.D.2d 642, 643, 668 N.Y.S.2d 238 (2d Dep't 1998); Webber v. City of Dunkirk, 226 A.D.2d 1050, 1051, 641 N.Y.S.2d 927 (4th Dep't 1996). While the Fourth Department's view of subsection (a) is diametrically opposed, Piccolo v. St. John's Home for Aging, 11 A.D.3d 884, 886, 782 N.Y.S.2d 475 (4th Dep't 2004); Tillman v. Triou's Homes, 253 A.D.2d 254, 258, 687 N.Y.S.2d 506 (4th Dep't 1999); Webber v. City of Dunkirk, 226 A.D.2d at 1051, 641 N.Y.S.2d 927; Zacher v. Niagara Frontier Servs., 210 A.D.2d 897, 898, 621 N.Y.S.2d 1015 (4th Dep't 1994), subsection (a)'s greater specificity or firmer mandate is imperceptible; if anything, subsection (b)(1) imposes a more concrete specification of safety and training. Walker v. Metro-North Commuter R.R., 11 A.D.3d at 340, 783 N.Y.S.2d 362; Reilly v. Newireen Assoc., 303 A.D.2d at 218, 756 N.Y.S.2d 192; Shields v. General Elec. Co., 3 A.D.3d 715, 718, 771 N.Y.S.2d 249 (3d Dep't 2004). Moreover, both the First and the Second Departments dictate that subsection (a) is an insufficient standard to impose a duty under Labor Law § 241(6). Hassett v. Celtic Holdings, 7 A.D.3d 364, 365, 775 N.Y.S.2d 855 (1st Dep't 2004); Anarumo v. Slattery Assoc., 298 A.D.2d 339, 340, 751 N.Y.S.2d 208 (2d Dep't 2002); Phillips v. City of New York, 228 A.D.2d 570, 572, 644 N.Y.S.2d 764 (2d Dep't 1996). See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d at 878, 609 N.Y.S.2d 168, 631 N.E.2d 110; Singleton v. Citnalta Constr. Corp., 291 A.D.2d 393, 394, 737 N.Y.S.2d 630 (2d Dep't 2002).
The only other applicable provisions, in 12 N.Y.C.R.R. § 23-9.5(c), require that:
Excavating machines shall be operated only by designated persons․ No person other than the pitman and excavating crew shall be permitted to stand within the range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation․
All the evidence suggests that Ochoa, the operator of defendant's excavator, however inexperienced, untrained, or unheeded, was the designated operator. All the evidence also suggests that plaintiff, while well within the excavator's dangerous reach, was working where the excavator was excavating pits in the debris or ground and was part of the crew performing the work in which the excavator was engaged. Therefore, even had plaintiff identified this regulation, nothing indicates a violation.
Finally, plaintiff's failure to identify specific regulatory provisions in his complaint or bill of particulars would not necessarily be fatal if, without undue delay, unfair surprise, or other prejudice, he identified those provisions in opposition to defendant's motion for summary judgment motion. Asaro v. City of New York, 19 A.D.3d 167, 795 N.Y.S.2d 890 (1st Dep't 2005); Walker v. Metro-North Commuter R.R., 11 A.D.3d at 341, 783 N.Y.S.2d 362; Padilla v. Frances Schervier Hous. Dev. Fund Corp., 303 A.D.2d at 196 n. 1, 758 N.Y.S.2d 3; Baten v. Wehuda, 281 A.D.2d 366, 722 N.Y.S.2d 534 (1st Dep't 2001). See Reilly v. Newireen Assoc., 303 A.D.2d at 218, 756 N.Y.S.2d 192. Here, however, plaintiff fails to allege, even in opposition to defendant's motion, any applicable regulation that defendant violated. Therefore the court must grant defendant summary judgment dismissing plaintiff's Labor Law § 241(6) claim. Vaneer v. 993 Intervale Ave. Hous. Dev. Fund Corp., 5 A.D.3d at 163, 773 N.Y.S.2d 7; Reilly v. Newireen Assoc., 303 A.D.2d at 218, 756 N.Y.S.2d 192; Pesca v. City of New York, 298 A.D.2d at 293, 749 N.Y.S.2d 26; Fitzgerald v. New York City School Constr. Auth., 18 A.D.3d at 808, 796 N.Y.S.2d 694.
D. LABOR LAW § 200
To the extent Labor Law § 200 would provide plaintiff an alternative basis for liability beyond his other negligence claims, § 200(1) requires that:
All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein․ All machinery, equipment, and devices shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons․
The Labor Law is chapter 31 of the consolidated laws. It governs conditions of various, but far from all, workplaces. They include building construction, demolition, and repair, in Article 10; public work, in Article 8; grade crossing elimination, in Article 8-A; building service, in Article 9; plumbing, in Article 10-A; factories, in Article 11; industrial homework, in Article 13; mercantile establishments and restaurants, in Article 14; mines, tunnels, quarries, and compressed air, in Article 15; places of public assembly, in Article 17; and work with explosives, in Article 16, toxic substances, in Article 28, and asbestos, in Article 30.
Assessing the viability of any Labor Law claim, whether under § 200, § 241(6), or another section, requires a threshold determination whether plaintiff was engaged in work entitled to protection under the Labor Law. The various Articles listed above illustrate that § 200 protects broader categories of work than § 241(6) protects: manufacturing in factories, under Article 11, and work in restaurants, under Article 14, for example. Jock v. Fien, 80 N.Y.2d 965, 967-68, 590 N.Y.S.2d 878, 605 N.E.2d 365 (1992); Mejia v. Levenbaum, 30 A.D.3d 262, 818 N.Y.S.2d 22, 23-24 (1st Dep't 2006). Nonetheless, they also demonstrate that the only category where plaintiff's work conceivably falls is Article 10, the same category § 241(6) pertains to: building construction or demolition or excavation in connection with that construction or demolition.
Here, defendant does not dispute that the solid waste transfer station's owner, Kids Waterfront, hired plaintiff to work at the waste transfer station as part of its operations and at tasks integral to the specific operations undertaken with the excavator. No evidence suggests his work was separate from the operations of the waste transfer station or the excavator or separate from the work of Kids Waterfront's other employees. Even if plaintiff was not “an integral part of the work crew, full time on a daily basis,” the undisputed evidence shows, at minimum, that he was “performing work necessary and incidental to” those operations when he was injured. Longo v. Metro-North Commuter R.R., 275 A.D.2d 238, 239, 712 N.Y.S.2d 531 (1st Dep't 2000). See Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38 (1st Dep't 2005); Agli v. Turner Constr. Co., 246 A.D.2d 16, 21, 676 N.Y.S.2d 54 (1st Dep't 1998). Therefore, if the waste transfer station or excavator was engaged in building demolition or in excavation in connection with that demolition, he is entitled to the Labor Law's protection. N.Y. Labor Law § 2(5) and (7); Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-77, 561 N.Y.S.2d 892, 563 N.E.2d 263 (1990); Paradise v. Lehrer, McGovern & Bovis, 267 A.D.2d 132, 134, 700 N.Y.S.2d 25 (1st Dep't 1999); Blandon v. Advance Contr. Co., 264 A.D.2d 550, 552, 695 N.Y.S.2d 36 (1st Dep't 1999); Agli v. Turner Constr. Co., 246 A.D.2d at 21, 676 N.Y.S.2d 54. As long as his work related to the demolition or excavation work of the waste transfer station's owner or the owner's agent or was part of the owner's or agent's demolition or excavation operations, plaintiff was a worker covered by the Labor Law. Longo v. Metro-North Commuter R.R., 275 A.D.2d at 239-40, 712 N.Y.S.2d 531. See Long v. Battery Park City Auth., 295 A.D.2d 204, 743 N.Y.S.2d 496 (1st Dep't 2002).
Even if plaintiff himself was performing routine maintenance at a demolition or excavation site or performing other tasks that were not actual demolition or excavation in isolation, his duties were directly related to that demolition or excavation process. Fitzpatrick v. State of New York, 25 A.D.3d 755, 757, 809 N.Y.S.2d 515 (1st Dep't 2006). See Blandon v. Advance Contr. Co., 264 A.D.2d at 552, 695 N.Y.S.2d 36; Agli v. Turner Constr. Co., 246 A.D.2d at 24, 676 N.Y.S.2d 54. These facts distinguish him from an employee who, although hired by the owner of the premises where the employee works or by the owner's agent, is not involved with the construction, demolition, or excavation at the site and therefore not entitled to the Labor Law's protection. Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d at 323, 798 N.Y.S.2d 38; Long v. Battery Park City Auth., 295 A.D.2d 204, 743 N.Y.S.2d 496; Valinoti v. Sandvik Seamco, 246 A.D.2d 344, 345-46, 677 N.Y.S.2d 311 (1st Dep't 1998); Somerville v. Usdan, 255 A.D.2d 500, 501, 683 N.Y.S.2d 268 (2d Dep't 1998). The evidence here demonstrates that if Kids Waterfront or its agent was engaged in demolition or excavation, plaintiff was injured while performing work integral to that demolition or excavation, rather than engaged in mere routine maintenance or other tasks outside the Labor Law's scope. Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d at 323, 798 N.Y.S.2d 38; Longo v. Metro-North Commuter R.R., 275 A.D.2d at 239, 712 N.Y.S.2d 531.
The “demolition work” to which Labor Law § 200 applies is “work incidental to or associated with the total or partial dismantling or razing of a building or other structure.” 12 N.Y.C.R.R. § 23-1.4(b)(16). Defendant does not contend that the debris transported to and from and received and sorted at the waste transfer station was not from the demolition of buildings or other structures. Moreover, although the statute under which 12 N.Y.C.R.R. § 23-1.4(b)(16) is promulgated, Labor Law § 241(6), appears to limit its applicability to building construction or demolition and to excavation in connection with building construction or demolition, its scope is not limited to building sites. Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 103, 752 N.Y.S.2d 581, 782 N.E.2d 558 (2002); Mosher v. State of New York, 80 N.Y.2d 286, 288-89, 590 N.Y.S.2d 53, 604 N.E.2d 115 (1992). The statute and regulation encompass any work “in connection with” or “in the context of construction, demolition or excavation at any site.” Nagel v. D & R Realty Corp., 99 N.Y.2d at 102-103, 752 N.Y.S.2d 581, 782 N.E.2d 558.
Defendant simply emphasizes that its trucks transported construction or demolition debris to the waste transfer station, which did not itself engage in structures' actual dismantling or razing, but received and sorted the debris and transported it to a landfill. The issue is not limited, however, to whether plaintiff was engaged in demolition or even to whether Kids Waterfront or its agent was engaged in demolition. 12 N.Y.C.R.R. § 23-1.4(b)(16) includes “incidental” and “associated” work within the scope of “demolition.” Pino v. Robert Martin Co., 22 A.D.3d 549, 552, 802 N.Y.S.2d 501 (2d Dep't 2005).
Apart from the applicable regulation, any determination whether particular work falls within the scope of construction, demolition, or excavation protected by the Labor Law depends on a “confluence of factors” and the full “context of the work.” Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 883, 768 N.Y.S.2d 178, 800 N.E.2d 351 (2003). See Nagel v. D & R Realty Corp., 99 N.Y.2d at 102, 752 N.Y.S.2d 581, 782 N.E.2d 558; Fitzpatrick v. State of New York, 25 A.D.3d at 757, 809 N.Y.S.2d 515. This test requires an inquiry into whether the work (a) fell “into a separate phase easily distinguishable from other parts” of a larger demolition project and occurred after the demolition was completed or (b) was “ongoing and contemporaneous” with other work that formed part of a single demolition project or contract. Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d at 881, 768 N.Y.S.2d 178, 800 N.E.2d 351; Fitzpatrick v. State of New York, 25 A.D.3d at 757, 809 N.Y.S.2d 515; Lijo v. City of New York, 31 A.D.3d 503, 818 N.Y.S.2d 569 (2d Dep't 2006). See Pino v. Robert Martin Co., 22 A.D.3d at 552, 802 N.Y.S.2d 501. If plaintiff was a member of a team that undertook any activity within the scope of such a project or contract or was performing any duties ancillary to demolition or excavation, he is protected by the Labor Law. Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d at 882, 768 N.Y.S.2d 178, 800 N.E.2d 351; Fitzpatrick v. State of New York, 25 A.D.3d at 757, 809 N.Y.S.2d 515; Lijo v. City of New York, 818 N.Y.S.2d at 571.
It is inconsistent with the statutory framework to ignore this context of the work. Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d at 882, 768 N.Y.S.2d 178, 800 N.E.2d 351; Fitzpatrick v. State of New York, 25 A.D.3d at 757, 809 N.Y.S.2d 515; Lijo v. City of New York, 818 N.Y.S.2d at 571. Yet defendant addresses none of the contextual questions necessary. Defendant ignores even the factors it considers relevant. It presents no evidence, for example, of where the demolition debris was transported from, whether that location or associated property was contiguous or otherwise close to the waste transfer station, or whether Kids Waterfront or its agent was associated with the structures being dismantled or their surrounding property, from which demolition debris was transported.
Nor does the evidence establish that the actual work performed at Kids Waterfront's waste transfer station was not demolition itself. In fact defendant does not dispute that both plaintiff and Ochoa were handling demolition material, plaintiff with his hands and Ochoa with the excavator, or that plaintiff was working with Ochoa, who was handling excavating equipment. At minimum, the defendant has not drawn any “bright line separating” their work from demolition or excavation. Beehner v. Eckerd Corp., 3 N.Y.3d 751, 752, 788 N.Y.S.2d 637, 821 N.E.2d 941 (2004); Lijo v. City of New York, 818 N.Y.S.2d at 571. See Pino v. Robert Martin Co., 22 A.D.3d at 552, 802 N.Y.S.2d 501. Instead, the evidence suggests that their work was a final phase of a demolition project, a phase that in itself also involved excavation. Lijo v. City of New York, 818 N.Y.S.2d at 571. See Pino v. Robert Martin Co., 22 A.D.3d at 552, 802 N.Y.S.2d 501.
The “excavation work” to which Labor Law § 200 applies is the “removal of earth, rock or other materials in connection with construction or demolition operations.” 12 N.Y.C.R.R. § 23-1.4(b)(19). The evidence consistently and unquestionably establishes that both plaintiff and Ochoa were removing earth, rock, and other materials, again plaintiff with his hands and Ochoa with the excavator. Nor does defendant dispute that the equipment used to perform the work at Kids Waterfront's waste transfer station and to which plaintiff's tasks related was an excavator.
Defendant describes plaintiff's and Ochoa's work as moving demolition debris from demolition debris piles. This description is indistinguishable from “removal of ․ materials.” 12 N.Y.C.R.R. § 23-1.4(b)(19). As plaintiff and Ochoa removed dirt, rock, and other material from a pile, they left a pit, hole, or depression in the pile. The excavator was equipped with a shovel and grapple that dug and grabbed this dirt, rock, and other material from the piles. See 12 N.Y.C.R.R. § 23-9.5(c). It defies imagination to conceive of how this process was anything other than “excavation,” especially as so broadly defined in § 23-1.4(b)(19). See Ciancio v. Woodlawn Cemetery Assn., 249 A.D.2d 86, 88, 671 N.Y.S.2d 466 (1st Dep't 1998).
The only remaining issue is whether the very fact this “excavation” is admittedly of demolition debris connects the excavation “with ․ demolition operations.” 12 N.Y.C.R.R. § 23-1.4(b)(19). If not, then the determination reverts to the same contextual inquiry whether the handling of demolition debris at Kids Waterfront's waste transfer station was part of, ancillary to, or otherwise connected with demolition. Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d at 881-83, 768 N.Y.S.2d 178, 800 N.E.2d 351; Nagel v. D & R Realty Corp., 99 N.Y.2d at 102, 752 N.Y.S.2d 581, 782 N.E.2d 558; Fitzpatrick v. State of New York, 25 A.D.3d at 757, 809 N.Y.S.2d 515; Lijo v. City of New York, 818 N.Y.S.2d at 571. The evidence in the current record, at minimum, does not foreclose finding a sufficient connection with demolition or excavation operations.
3. Sanzo Enterprises' Authority and Control Over the Excavator's Operations
For the excavator's undisputed owner, defendant Sanzo Enterprises, to be liable for a violation of Labor Law § 200, defendant must have had (1) authority or control over the work plaintiff was involved in when he was injured or over the conditions in which it was carried out or (2) notice of a hazard and sufficient authority or control to ensure the hazard was corrected. Rizzuto v. Wenger Contr. Co., 91 N.Y.2d at 352-53, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Havlin v. City of New York, 17 A.D.3d 172, 173, 792 N.Y.S.2d 464 (1st Dep't 2005); Higgins v. 1790 Broadway Assocs., 261 A.D.2d 223, 225, 691 N.Y.S.2d 31 (1st Dep't 1999); Carballo v. 444 E. 87th St. Owners Corp., 14 A.D.3d 526, 527, 789 N.Y.S.2d 170 (2d Dep't 2005). Whether defendant qualifies as an agent of Kids Waterfront, the owner of the premises where plaintiff was working, is of no consequence for liability under § 200, since defendant may not be held vicariously liable under that statute, unlike § 241(6), regardless whether defendant exercised supervision or control over the work. See Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863-64, 798 N.Y.S.2d 351, 831 N.E.2d 408 (2005); Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 293, 771 N.Y.S.2d 484, 803 N.E.2d 757 (2003); Russin v. Picciano & Son, 54 N.Y.2d 311, 317-18, 445 N.Y.S.2d 127, 429 N.E.2d 805 (1981); Serpe v. Eyris Prods., 243 A.D.2d 375, 379-80, 663 N.Y.S.2d 542 (1st Dep't 1997).
The current record does not precisely define the relationship between Kids Waterfront and Sanzo Enterprises regarding the use of Sanzo Enterprises' excavator on Kids Waterfront's premises by and in close range of its employees. Nevertheless, Sanzo Enterprises does not dispute that, as the excavator's owner, it retained the authority to deny that use at any time, under any circumstances. This authority placed the excavator's owner squarely in the position both to permit the work involving the excavator to be carried out and to control its operation and limit the times and circumstances of that work. Havlin v. City of New York, 17 A.D.3d at 172-73, 792 N.Y.S.2d 464; Carballo v. 444 E. 87th St. Owners Corp., 14 A.D.3d at 527, 789 N.Y.S.2d 170; Bornschein v. Shuman, 7 A.D.3d 476, 479, 776 N.Y.S.2d 307 (2d Dep't 2004); Penta v. Related Cos., 286 A.D.2d 674, 675, 730 N.Y.S.2d 140 (2d Dep't 2001). The undisputed fact that defendant, as the excavator's owner, had the authority, in permitting the excavator's use, to insist that adequate safety practices be followed in its operation, or to stop the excavator's unsafe use, establishes the requisite basis for liability under Labor Law § 200. Rizzuto v. Wenger Contr. Co., 91 N.Y.2d at 352-53, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Havlin v. City of New York, 17 A.D.3d at 172-73, 792 N.Y.S.2d 464; Carballo v. 444 E. 87th St. Owners Corp., 14 A.D.3d at 527, 789 N.Y.S.2d 170; Beyea v. Malcolm Pirnie, Inc., 298 A.D.2d 940, 941, 747 N.Y.S.2d 653 (4th Dep't 2002).
Further, even if a supplier of worksite equipment ordinarily would not be liable under the Labor Law, here that supplier's principal, Carmine Sanzo, was regularly present at and involved in the worksite operations and aware of hazardous conditions at the worksite. Havlin v. City of New York, 17 A.D.3d 172, 792 N.Y.S.2d 464; Spagnuolo v. Port Auth. of N.Y. & N.J., 8 A.D.3d 64, 65, 778 N.Y.S.2d 23 (1st Dep't 2004); Murphy v. Columbia Univ., 4 A.D.3d 200, 201-202, 773 N.Y.S.2d 10 (1st Dep't 2004); Higgins v. 1790 Broadway Assocs., 261 A.D.2d at 225, 691 N.Y.S.2d 31. Defendant maintains that Sanzo was working in his capacity as a Kids Waterfront employee whenever he was present at or involved in the waste transfer station's operations. Although plaintiff disputes that Sanzo was working solely in that capacity and not on Sanzo Enterprises' behalf for or with Kids Waterfront, even accepting defendant's version, it establishes only that defendant may not have had the authority to control other hazardous worksite conditions, apart from the excavator's use. Defendant disputes neither that it transported demolition debris to the worksite to be handled by defendant's excavator, and thus to that extent worked for and with Kids Waterfront, nor, critically, that defendant had the authority to control the excavator's use. Even though defendant may have had no control over plaintiff's work, defendant would remain liable because his injury arose not from his work methods, but from conditions occasioned by the excavator's use, of which defendant was aware. Murphy v. Columbia Univ., 4 A.D.3d at 202, 773 N.Y.S.2d 10; Lynch v. Abax, Inc., 268 A.D.2d 366, 367, 702 N.Y.S.2d 271 (1st Dep't 2000); Higgins v. 1790 Broadway Assocs., 261 A.D.2d at 225, 691 N.Y.S.2d 31; Detraglia v. Blue Circle Cement Co., 7 A.D.3d 872, 873-74, 776 N.Y.S.2d 342 (3d Dep't 2004). See Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 A.D.3d 1059, 1060-61, 785 N.Y.S.2d 207 (4th Dep't 2004).
In sum, while Sanzo may have shed his cloak as defendant's principal in undertaking responsibilities for Kids Waterfront, he could not shed the cloak as principal of the excavator's owner. When he performed his duties for Kids Waterfront, he positioned himself to know, in his capacity for defendant, the conditions under which its excavator was used. Spagnuolo v. Port Auth. of N.Y. & N.J., 8 A.D.3d at 65, 778 N.Y.S.2d 23; Detraglia v. Blue Circle Cement Co., 7 A.D.3d at 873-74, 776 N.Y.S.2d 342; Gonzalez v. City of New York, 304 A.D.2d 709, 710-11, 758 N.Y.S.2d 672 (2d Dep't 2003); Latino v. Nolan & Taylor-Howe Funeral Home, 300 A.D.2d 631, 633, 754 N.Y.S.2d 289 (2d Dep't 2002). Moreover, Sanzo was not simply in a position to observe the operations. Upon Ochoa's complaint to Sanzo that the sun glare obstructed visibility when Ochoa operated the excavator, Sanzo Enterprises, even if not a contractor at the worksite, acquired further notice of dangerous conditions, while retaining authority to control those operations. Gonzalez v. City of New York, 304 A.D.2d at 710-11, 758 N.Y.S.2d 672; Beyea v. Malcolm Pirnie, Inc., 298 A.D.2d at 940-41, 747 N.Y.S.2d 653.
Although Sanzo's admission that Sanzo maintained and repaired the excavator as necessary fails to qualify expressly in what capacity he did so, unquestionably his own defendant corporation, as the excavator's owner, always retained both the authority and the responsibility to maintain defendant's equipment in safe condition for whatever use the owner permitted. Consistent with this testimony, Ochoa also testified that he made his complaints concerning dangerous conditions and concerning the sun glare, in particular, to Sanzo, without specifying his capacity. The fact remains, nonetheless, that Ochoa was complaining to the principal of the responsible party, the owner Sanzo Enterprises.
Defendant thus has failed to show that it did not have authority and control over the safe use of the equipment and the safety of the conditions that caused plaintiff's injury. Lynch v. Abax, Inc., 268 A.D.2d at 367, 702 N.Y.S.2d 271; Higgins v. 1790 Broadway Assocs., 261 A.D.2d at 225, 691 N.Y.S.2d 31; Bornschein v. Shuman, 7 A.D.3d at 479, 776 N.Y.S.2d 307; Hennard v. Boyce, 6 A.D.3d 1132, 1133, 776 N.Y.S.2d 411 (4th Dep't 2004). See Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 A.D.3d at 1061, 785 N.Y.S.2d 207. If defendant retained that authority and control, defendant was responsible to prevent or remedy the excavator's known hazardous use, to insist on safe operation, and to guard against unsafe operation and is not relieved of liability for injuries caused by unsafe use or conditions over which defendant had authority. Rizzuto v. Wenger Contr. Co., 91 N.Y.2d at 353, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Havlin v. City of New York, 17 A.D.3d at 172-73, 792 N.Y.S.2d 464; Gonzalez v. City of New York, 304 A.D.2d at 711, 758 N.Y.S.2d 672; Beyea v. Malcolm Pirnie, Inc., 298 A.D.2d at 941, 747 N.Y.S.2d 653. See Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-48, 802 N.Y.S.2d 41 (1st Dep't 2005); Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 A.D.3d at 1060-61, 785 N.Y.S.2d 207.
Consequently, the court grants defendant Sanzo Enterprises' motion for summary judgment to the extent of dismissing plaintiff's claim that defendant violated Labor Law § 241(6). The court denies defendant's motion insofar as it seeks summary judgment dismissing plaintiff's claims that defendant is liable (1) under Labor Law § 200, (2) under VTL §§ 125 and 388(1) for the unsafe operation of defendant's motor vehicle, and (3) for negligently entrusting dangerous equipment to an untrained operator. C.P.L.R. § 3212(b) and (e).
LUCY BILLINGS, J.