Piccolo v. St. John's Home for the Aging

• Decision Date: 01 October 2004
• Docket Number: CA 04-00004.
• Citation: 2004 NY Slip Op 06855,11 A.D.3d 884,782 N.Y.S.2d 475
• Parties: FRED PICCOLO, Appellant, v. ST. JOHN'S HOME FOR THE AGING, Doing Business as ST. JOHN'S MEADOWS, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

11 A.D.3d 884

782 N.Y.S.2d 475

2004 NY Slip Op 06855

FRED PICCOLO, Appellant, v. ST. JOHN'S HOME FOR THE AGING, Doing Business as ST. JOHN'S MEADOWS, et al., Respondents, et al., Defendant.

CA 04-00004.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

October 1, 2004.

Appeal from an order of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered June 18, 2003. The order granted the motion of 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 for summary judgment dismissing the common-law negligence cause of action and Labor Law §§ 200, 240 (1) and § 241 (6) claims against them and denied plaintiff's cross motion for summary judgment on the issue of liability under Labor Law § 240 (1).

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:

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 AD2d 886, 886-887 [2002]; see Tillman v Triou's Custom Homes, 253 AD2d 254, 257 [1999]). 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 AD2d 955, 956 [2001]).

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." W...