Cases decided on: May 30, 2019
By Sweeny, J.P., Tom, Webber, Kahn, Singh, JJ.Curby Toussaint, plf-res-ap, v. The Port Authority of New York and New Jersey, def-ap, Granite Construction Northeast, Inc., def-res, Skanska USA Civil Northeast, Inc., et al., defs.Cross appeals from the order of the Supreme Court, New York County (Lynn R. Kotler, J.), entered October 24, 2017, which, to the extent appealed from, denied defendant Port Authority of New York and New Jersey’s motion for summary judgment dismissing the Labor Law §241(6) claim predicated on Industrial Code (12 NYCRR) §23-9.9(a). Segal McCambridge Singer & Mahoney, Ltd., New York (Janine J. Wong and Simon Lee of counsel), for appellant-respondent and respondent. Sullivan Papain Block McGrath & Cannavo, New York (Brian J. Shoot of counsel), for respondent-appellant.SINGH, J.We are asked in this appeal to decide whether the requirement in the Industrial Code that a “designated person” operate a power buggy is sufficiently specific to support a claim under Labor Law §241(6). We find that the requirement is specific and, upon a search of the record, grant plaintiff summary judgment on his Labor Law §241(6) cause of action. Plaintiff was injured when he was struck in the back by a power buggy after an operating engineer on the construction site attempted to move the buggy. The operating engineer admitted at his examination before trial that he struck plaintiff with the power buggy. Plaintiff testified that the operating engineer jumped on the power buggy, lost control and fell off the buggy, which then struck him. Plaintiff stated that he had seen the operating engineer around the worksite prior to his accident, and that the operating engineer was not supposed to be in plaintiff’s work area “messing with that machine.” According to plaintiff, the operating engineer was a watchman on another side of the construction site. Plaintiff testified that the operating engineer repeatedly apologized after the accident for striking him with the buggy, saying that he did not mean to do so and that he was “horse playing.”It is undisputed that the operating engineer was not designated to operate the power buggy. The operating engineer acknowledged that laborers on the construction site were assigned to operate the power buggy.12 NYCRR 23-9.9(a) states: “Assigned operator. No person other than a trained and competent operator designated by the employer shall operate a power buggy.” The term “designated person” is defined in 12 NYCRR 23-1.4(b)(17) as “[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty.” The requirement that a designated person operate a power buggy is “self-executing in the sense that [it] may be implemented without regard to external considerations such as rules and regulations, contracts or custom and usage” (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993] [internal quotations omitted]). We have held that similarly worded provisions of the Industrial Code are sufficiently specific to support a Labor Law §241(6) claim. In Medina v. 42nd & 10th Assoc., LLC (129 AD3d 610, 611 [1st Dept 2015]), we found Industrial Code (12 NYCRR) §23-5.1(h), which provides that “[e]very scaffold shall be erected and removed under the supervision of a designated person,” and section 23-5.8(c)(1), which provides that “[t]he installation or horizontal change in position of every suspended scaffold shall be in charge of and under the direct supervision of a designated person,” sufficiently specific.In Sawicki v. AGA 15th St., LLC (143 AD3d 549 [1st Dept 2016]), we implied that Industrial Code §23-9.5(c) which requires, in pertinent part, that excavating machines “be operated only by designated persons” was sufficiently specific by analyzing whether the employee was a “designated person” and citing to the definition in Industrial Code §23-1.4(b)(17). However, we dismissed the Labor Law §241(6) claim, finding that the equipment was operated by a person “selected and directed by his employer” (143 AD3d at 550 [internal quotation marks omitted]).Significantly, in Batista v. Manhanttanville Coll. (138 AD3d 572, 572-573 [1st Dept 2016], mod on another ground 28 NY3d 1093 [2016]), we sustained the Labor Law §241(6) cause of action predicated upon Industrial Code §23-5.1(e), (g) and (h), finding the provisions sufficiently specific. Industrial Code §23-5.1(h) states, “Every scaffold shall be erected and removed under the supervision of a designated person.” The Court of Appeals, while modifying on other grounds, affirmed our finding as to the specificity of the relevant provisions. The dissent dismisses the affirmance of the Court of Appeals as “provid[ing] no further clarification” on the issue. We disagree. The Court of Appeals’ affirmance necessarily indicates that the Court found “designated person” sufficiently specific. We agree with the dissent that the regulation’s requirement that a “trained and competent operator… shall” operate the power buggy is general, as it lacks a specific requirement or standard of conduct. However, since the term “designated person” has been held to be specific, 12 NYCRR 23-9.9(a) is a proper predicate for a claim under Labor Law §241(6). The dissent’s concern that we are exposing a defendant to liability for injury caused by a power buggy operated by an unauthorized person is misplaced.1 We note that the Court of Appeals has reiterated that, while the duty imposed by Labor Law §241(6) may be “onerous[,]… it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with ‘constructing or demolishing buildings or doing any excavating in connection therewith’” (Allen v. Cloutier Constr. Corp., 44 NY2d 290, 300 [1978]), and that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” (St. Louis v. Town of N. Elba, 16 NY3d 411, 416 [2011]).Moreover, liability under Labor Law §241(6) “is dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision was a result of negligence” (Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 450 [1st Dept 2013]). The fact that the operating engineer was “horse playing” prior to operating the power buggy does not absolve defendant from liability under Labor Law §241(6) (see Christey v. Gelyon, 88 AD2d 769, 770 [4th Dept 1982] ["It is well established that horseplay or frivolous activities… are natural diversions between coemployees during lulls in work activities and injuries sustained during them are compensable as an incident of the work"]). We grant plaintiff’s request to search the record and award him summary judgment on the Labor Law §241(6) claim as there are no disputed issues of fact as to defendant’s liability for the violation of 12 NYCRR 23-9.9(a). It is undisputed that the operating engineer was not “designated by the employer” to operate the power buggy. He nevertheless did so, and his operation of the power buggy was a proximate cause of plaintiff’s injuries.Accordingly, the order of the Supreme Court, New York County (Lynn R. Kotler, J.), entered October 24, 2017, which, to the extent appealed from, denied defendant Port Authority of New York and New Jersey’s motion for summary judgment dismissing the Labor Law §241(6) claim predicated on Industrial Code (12 NYCRR) §23-9.9(a) as against it, should be modified, on the law, upon a search of the record, to grant plaintiff summary judgment as to liability on that claim as against said defendant, and, as so modified, affirmed, without costs.All concur except Tom and Kahn, JJ. who dissent in an Opinion by Tom, J.
