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

404
CA 14-01641
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


GARY BUHR, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CONCORD SQUARE HOMES ASSOCIATES, INC.,
DEFENDANT-RESPONDENT.


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

OSBORN, REED & BURKE, LLP, ROCHESTER (L. DAMIEN COSTANZA OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered December 26, 2013. The order, inter alia,
denied the motion of plaintiff for partial summary judgment on
liability pursuant to Labor Law § 241 (6).

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the cross
motion seeking summary judgment dismissing the Labor Law § 241 (6)
cause of action insofar as it is based upon the alleged violations of
12 NYCRR 23-9.4 (e) (1) and (h) (1) and reinstating that cause of
action to that extent, and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this common-law negligence and
Labor Law § 241 (6) action seeking damages for injuries he sustained
when he was assisting in the repair of a broken water pipe at an
apartment complex owned by defendant. At the time of the accident,
plaintiff’s supervisor was operating a backhoe to identify and expose
the broken pipe. After the broken pipe was identified, plaintiff was
directed to exit the excavation while the supervisor moved the pipe
with the teeth of the backhoe bucket. Plaintiff was climbing a ladder
out of the excavation when the backhoe bucket swung toward him, struck
him in the leg, and pinned his leg against the side of the excavation.

     We conclude that Supreme Court properly granted that part of
defendant’s cross motion seeking summary judgment dismissing the Labor
Law § 241 (6) cause of action insofar as it is based upon the alleged
violation of 12 NYCRR 23-4.2 (k). That regulation is not sufficiently
specific to support the section 241 (6) cause of action (see Webber v
City of Dunkirk, 226 AD2d 1050, 1051). We further conclude that the
court properly denied plaintiff’s motion seeking partial summary
                                 -2-                           404
                                                         CA 14-01641

judgment on liability pursuant to Labor Law § 241 (6), but erred in
granting that part of the cross motion seeking summary judgment
dismissing the section 241 (6) cause of action insofar as it is based
upon the alleged violation of 12 NYCRR 23-9.4 (e) (1) and (h) (1). We
therefore modify the order accordingly. Contrary to the court’s
determination, the testimony of the witnesses to the accident
established that the backhoe was being “used for material handling”
within the meaning of that regulation (see Kropp v Town of Shandaken,
91 AD3d 1087, 1091). In addition, the eyewitness testimony raises
triable issues of fact concerning how the accident occurred, whether
the regulations at issue were violated (see Smith v Torre, 247 AD2d
896, 897), and whether plaintiff was negligent (see Mulcaire v Buffalo
Structural Steel Constr. Corp., 45 AD3d 1426, 1428; Irwin v St.
Joseph’s Intercommunity Hosp., 236 AD2d 123, 131-132).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
