Martinez v. Hitachi Constr. Machinery Co., Ltd.

• Decision Date: 18 August 2006
• Docket Number: 6099/2003.
• Citation: 2006 NY Slip Op 26530,829 N.Y.S.2d 814,15 Misc.3d 244
• Parties: ADRIAN MARTINEZ, Plaintiff, v. HITACHI CONSTRUCTION MACHINERY CO., LTD., et al., Defendants.
• Court: New York Supreme Court

15 Misc.3d 244

829 N.Y.S.2d 814

2006 NY Slip Op 26530

ADRIAN MARTINEZ, Plaintiff, v. HITACHI CONSTRUCTION MACHINERY CO., LTD., et al., Defendants.

6099/2003.

Supreme Court, Bronx County.

August 18, 2006.

Corleto & Associates, P.C., White Plains (Brian S. Frank of counsel), for Sanzo Enterprises, Inc., defendant.

Cruser & Mitchell, LLP, Melville (Rondienne Novitz of counsel), and Lowe Eklund Wakefield & Mulvihill Co., L.P.A., Cleveland, Ohio (Mark L. Wakefield of counsel), for plaintiff.

OPINION OF THE COURT

LUCY BILLINGS, J.

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 (CPLR § 3212 [b]). For the reasons explained below, the court grants Sanzo Enterprises' motion to the extent set forth and otherwise denies the motion (CPLR 3212 [b], [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 § 125, and, as the vehicle owner, Sanzo Enterprises is liable for Ochoa's unsafe operation of the vehicle (Vehicle and Traffic Law § 388 [1]). Second, plaintiff claims that even if the excavator does not qualify as a vehicle under Vehicle and Traffic Law § 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 work site, 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 (Vehicle and Traffic Law § 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 Vehicle and Traffic Law 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 Vehicle and Traffic Law § 388 is in title III of the Vehicle and Traffic Law, section 125's exception for "caterpillar or crawler-type equipment" does not exclude this equipment from motor vehicles under section 388. Section 388 (2), however contains its own exceptions: "As used in this section, `vehicle' means a `motor vehicle', as defined in section [125] ... 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 sections 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" (Vehicle and Traffic Law § 125; Matter of Vincent H., 3 Misc 3d 900, 903 [Fam Ct, Queens County 2004]; see Harper v Lumbermen's Mut. Cas. Co., 174 AD2d 1031, 1032 [4th Dept 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" on November 8, 2002 (Vehicle and Traffic Law § 388 [2]).

The Vehicle and Traffic Law does not define "contract site," although Vehicle and Traffic Law § 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 Vehicle and Traffic Law provision that uses the term, section 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 section 11 of the Vehicle and Traffic Law 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 section 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 Vehicle and Traffic Law §§ 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 Vehicle and Traffic Law § 134's broad ambit (see People v Thew, 44 NY2d 681, 682 [1978]; Matter of County of Westchester v Winstead, 231 AD2d 630 [2d Dept 1996]; People v Haszinger, 149 Misc 2d 856, 859 [Nassau Dist Ct 1991]; People v Kolinsky, 111 Misc 2d 633, 636 [Crim Ct, Queens County 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 NY2d at 682; People v Moore, 196 Misc 2d 340, 342 [Just Ct, Tompkins County 2003]; People v Haszinger, 149 Misc 2d 856, 858-859 [Nassau Dist Ct 1991]; People v Edsall, 111 Misc 2d 767, 769 [Town Ct, Schuyler County 1981]). The area need not be open to vehicular traffic to be a "public place" or "public way" (Vehicle and Traffic Law § 134; Matter of County of Westchester v Winstead, 231 AD2d at 630; Matter of Vincent H., 3 Misc 3d at 904).

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 (Vehicle and Traffic Law § 134; People v Moore, 196 Misc 2d at 342; People v Haszinger, 149 Misc 2d at 858; see People v Edsall, 111 Misc 2d at 768-769; People v Kolinsky, 111 Misc 2d at 636-637). 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 NY2d at 682; People v Haszinger, 149 Misc 2d at 858; People v Ostermeier, 118 Misc 2d 68, 71 [Suffolk County Ct 1983]; People v Edsall, 111 Misc 2d at 768-769; see People v Kolinsky, 111 Misc 2d at 636-637).

New York's solid waste transfer facilities bear indicia of a "public place" or "public way" (Vehicle and Traffic Law § 134; People v Moore, 196 Misc 2d at 342; People v Haszinger, 149 Misc 2d at 858; see People v Edsall, 111 Misc 2d at 768-769; People v Kolinsky, 111 Misc 2d at 636-637). 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 Environmental Conservation Law § 27-0106's objectives, and in full compliance with DEC rules (ECL...