Scott v. Westmore Fuel Co.

• Decision Date: 12 June 2012
• Parties: Akron SCOTT, Plaintiff–Appellant, v. WESTMORE FUEL COMPANY, INCORPORATED, et al., Defendants–Respondents. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 520
947 N.Y.S.2d 15
2012 N.Y. Slip Op. 04698

Akron SCOTT, Plaintiff–Appellant,
v.
WESTMORE FUEL COMPANY, INCORPORATED, et al., Defendants–Respondents.
[And a Third–Party Action].

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

June 12, 2012.

The Cochran Firm, New York (Paul A. Marber of counsel), for appellant.

[947 N.Y.S.2d 16]

Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas P. Hurzeler of counsel), for Westmore Fuel Company, Incorporated and Purdy Avenue Terminals, LLC, respondents.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for Diamondhead Construction & Maintenance Corp., respondent.

TOM, J.P., MAZZARELLI, MOSKOWITZ, RENWICK, ABDUS–SALAAM, JJ.

[96 A.D.3d 520]Order, Supreme Court, New York County (Norma Ruiz, J.), entered on or about January 21, 2011, which, insofar as appealed from as limited by the briefs, dismissed plaintiff's Labor Law § 241(6) claim as asserted against all the defendants, unanimously modified, on the law, to deny summary judgment dismissing the claim insofar as it is predicated on 12 NYCRR § 23–9.5(c), and otherwise affirmed, without costs.

Plaintiff was riding on the exterior step of a moving backhoe when he fell and the backhoe ran over his left foot. The accident occurred at defendants Purdy Avenue Terminals and Westmore Fuel Company's (collectively Westmore) fuel tank facility. Westmore had retained defendant Diamondhead Construction & Maintenance Corp. (Diamondhead) to replace a rubber containment lining to prevent soil contamination from fuel leaks. Diamondhead subcontracted plaintiff's employer to perform the installation work.

The statutory protection of Labor Law § 241(6) extends to the activity in which plaintiff was engaged at the time of the accident, regardless of whether the backhoe was being brought from storage to the work site for use ( see Gherardi v. City of New York, 49 A.D.3d 280, 852 N.Y.S.2d 126 [2008] ), or taken away from the work site for storage at the end of the work day ( see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881–882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003];Danielewski v. Kenyon Realty Co., 2 A.D.3d 666, 770 N.Y.S.2d 97 [2003] ). However, 12 NYCRR § 23–9.4(a) is too general to support a Labor Law § 241(6) claim [96 A.D.3d 521]( see Robinson v. County of Nassau, 84 A.D.3d 919, 921, 923 N.Y.S.2d 135 [2011];Brechue v. Town of Wheatfield, 241 A.D.2d 935, 935, 661 N.Y.S.2d 334 [1997],lv. denied94 N.Y.2d...