        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

918
CA 14-02122
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


JOSETTE MARCELLO, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 116793.)


CELLINO & BARNES, P.C., ROCHESTER (RICHARD P. AMICO OF COUNSEL), FOR
CLAIMANT-APPELLANT.

LAW OFFICES OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Renée Forgensi
Minarik, J.), entered February 6, 2014. The order granted the motion
of defendant for summary judgment and dismissed the claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this Labor Law action seeking
damages for injuries she sustained when she was struck by a backhoe
that was backing up at a road construction site. The Court of Claims
granted defendant’s motion for summary judgment dismissing the claim,
and claimant contends on appeal only that the court erred in granting
that part of the motion with respect to Labor Law § 241 (6) to the
extent that it is premised on the alleged violation of 12 NYCRR 23-9.5
(g). We affirm. In the order on appeal, the court concluded that the
last sentence of the regulation does not contain a specific, concrete
standard that will support liability under Labor Law § 241 (6). “In
order to support a claim under section 241 (6), . . . the particular
provision relied upon by a [claimant] must mandate compliance with
concrete specifications and not simply declare general safety
standards or reiterate common-law principles” (Misicki v Caradonna, 12
NY3d 511, 515; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,
505). Thus, section 241 (6) imposes a nondelegable duty on a
defendant “only where the regulation in question contains a ‘specific,
positive command[]’ ” (Morris v Pavarini Constr., 9 NY3d 47, 50,
quoting Allen v Cloutier Constr. Corp., 44 NY2d 290, 297, rearg denied
45 NY2d 776). The regulation at issue here states that “[e]very
mobile power-operated excavating machine . . . shall be provided with
an approved warning device so installed as to automatically sound a
warning signal when such machine is backing,” and the last sentence
states that “[s]uch warning signal shall be audible to all persons in
                                 -2-                           918
                                                         CA 14-02122

the vicinity of the machine above the general noise level in the area”
(12 NYCRR 23-9.5 [g]). We agree with the court that the “regulation
sets forth a general standard of care and is not sufficiently specific
to support a section 241 (6) claim” (Wilson v Niagara Univ., 43 AD3d
1292, 1293; see generally McCormick v 257 W. Genesee, LLC, 78 AD3d
1581, 1583; Pereira v Quogue Field Club of Quogue, Long Is., 71 AD3d
1104, 1105).

     In view of our determination, we do not address claimant’s
remaining contentions.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
