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

307
CA 14-01640
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


SHANE VANDERWALL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

1255 PORTLAND AVENUE LLC AND SPOLETA
CONSTRUCTION LLC, DEFENDANTS-RESPONDENTS.

-----------------------------------------
SPOLETA CONSTRUCTION LLC, THIRD-PARTY
PLAINTIFF,

                    V

HUB-LANGIE PAVING, INC., THIRD-PARTY
DEFENDANT.


CELLINO & BARNES, P.C., ROCHESTER (ROBERT L. VOLTZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PILLINGER MILLER TARALLO, LLP, SYRACUSE (JEFFREY D. SCHULMAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT 1255 PORTLAND AVENUE LLC.

RUBIN, FIORELLA & FRIEDMAN LLP, NEW YORK CITY (STEWART B. GREENSPAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT SPOLETA CONSTRUCTION LLC.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered November 12, 2013. The order, among other
things, granted those parts of the motions of defendants for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying those parts of the motions of defendants seeking
dismissal of the Labor Law § 241 (6) claim insofar as that claim is
based upon a violation of 12 NYCRR 23-9.5 (c) and reinstating the
complaint to that extent, and as modified the order is affirmed
without costs.

     Memorandum: Defendant 1255 Portland Avenue LLC (1255 Portland)
hired defendant-third-party plaintiff, Spoleta Construction LLC
(Spoleta), as the general contractor to perform certain work in the
construction of a medical office building, and Spoleta in turn hired
plaintiff’s employer, third-party defendant, Hub-Langie Paving, Inc.
(Hub-Langie), as a subcontractor. Plaintiff allegedly sustained
injuries as a result of being hit by the bucket of an excavator at the
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                                                         CA 14-01640

construction site, and thereafter commenced this action, asserting
claims for the violation of Labor Law §§ 200 and 241 (6), and a cause
of action for common-law negligence. Defendants each moved for
summary judgment seeking, inter alia, dismissal of the complaint
against them, and plaintiff moved for partial summary judgment on the
issue of defendants’ liability pursuant to section 241 (6) insofar as
plaintiff’s claim thereunder was based on defendants’ violation of 12
NYCRR 23-9.5 (c) and Spoleta’s violation of 12 NYCRR 23-4.2 (k).
Supreme Court, inter alia, granted those parts of defendants’ motions
seeking summary judgment dismissing the complaint against them.

     As a preliminary matter, we reject plaintiff’s contention that
the court erred in dismissing the Labor Law § 241 (6) claim to the
extent that it alleged the violation of 12 NYCRR 23-4.2 (k). That
regulation “[is] not sufficiently specific to support a cause of
action under Labor Law § 241 (6)” (Webber v City of Dunkirk, 226 AD2d
1050, 1051).

     We agree with plaintiff, however, that the court erred in
granting those parts of defendants’ motions for summary judgment
dismissing the Labor Law § 241 (6) claim insofar as that claim is
based on 12 NYCRR 23-9.5 (c), and we therefore modify the order
accordingly. That regulation provides, in relevant part, that
“[e]xcavating machines shall be operated only by designated persons .
. . [and] [n]o person[s] other than the pitman and excavating crew
shall be permitted to stand within range of the back of a power shovel
or within range of the swing of the dipper bucket while the shovel is
in operation.” Plaintiff contends that the regulation was violated
because his supervisor was operating the excavator at the time of the
accident despite the fact that plaintiff was the only designated
operator. Plaintiff further contends the regulation was violated
because he was not a member of the excavating crew at the time of the
accident, and thus should not have been permitted to stand within
range of the excavation bucket, which struck him. Contrary to
plaintiff’s contention, we conclude that his supervisor was a
“designated person[]” authorized to operate the subject excavator
inasmuch as he was the superintendent for plaintiff’s employer, he had
his own key to the excavator, and he possessed supervisory authority
over both plaintiff and the entire work site (see 12 NYCRR 23-1.4 [b]
[17]). Nevertheless, we further conclude that, although plaintiff and
his supervisor were performing excavation work at the time of the
incident, plaintiff was not part of any “excavation crew.” In support
of that conclusion, we note that the interpretation of a regulation
presents a question of law for a court to resolve (see Morris v
Pavarini Constr., 9 NY3d 47, 51) and, in our view, the word “crew”
necessarily denotes more than one worker. Here, it is undisputed that
plaintiff expected to perform the subject excavation work alone, with
no expectation that his supervisor would be joining him and no
awareness that his supervisor had, in fact, arrived and started
operating the excavator. Specifically, plaintiff’s supervisor
conceded that plaintiff did not see him get into the excavator as
plaintiff was looking down operating a jackhammer with earplugs in.
Because plaintiff was not part of any “crew” at the time of the
accident, the regulation was violated when plaintiff was permitted to
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                                                          CA 14-01640

stand within range of the bucket when the excavating machine was in
use (cf. Benevento v City of Buffalo, 74 AD3d 1738, 1739; Mingle v
Barone Dev. Corp. [appeal No. 2], 283 AD2d 1028, 1029).

      Despite our conclusion that defendants violated 12 NYCRR 23-9.5
(c), we reject plaintiff’s contention that he is entitled to partial
summary judgment on the issue of defendants’ liability with respect to
the Labor Law § 241 (6) claim. A violation of an Industrial Code
provision “does not establish negligence as a matter of law but is
merely some evidence to be considered on the question of a defendant’s
negligence” (Puckett v County of Erie, 262 AD2d 964, 965 [internal
quotation marks omitted]; see Rizzuto v L.A. Wenger Contr. Co., 91
NY2d 343, 349; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502
n 4).

     All concur except PERADOTTO and CARNI, JJ., who dissent in part and
vote to affirm in the following memorandum: We respectfully dissent
in part because we disagree with the majority that Supreme Court
“erred in granting those parts of defendants’ motions for summary
judgment dismissing the Labor Law § 241 (6) claim insofar as that
claim is based on 12 NYCRR 23-9.5 (c).” Initially, we agree with the
majority that the court did not err “in dismissing the Labor Law § 241
(6) claim to the extent that it alleged the violation of 12 NYCRR 23-
4.2 (k).” We also agree with the majority that plaintiff’s supervisor
“was a ‘designated person[]’ authorized to operate the subject
excavator.” Contrary to the majority, however, we conclude that the
court properly determined that plaintiff was a member of an
“excavating crew,” and therefore defendants did not violate 12 NYCRR
23-9.5 (c). We would therefore affirm the order in its entirety.

     Plaintiff was employed by third-party defendant Hub-Langie
Paving, Inc. (Hub-Langie). Defendant Spoleta Construction LLC
(Spoleta), a general contractor, hired Hub-Langie as a subcontractor
to help Spoleta construct a medical office building for defendant 1255
Portland Avenue LLC. Specifically, “Hub Langie’s job was just to do
the excavating and the paving.”

     Hub-Langie hired plaintiff as a “pipe layer.” The position
“consisted of . . . working with the excavator, being in a hole, [and]
putting pipe together, whether it be water [or] sewer.” On October
20, 2008, the date of the accident at issue, plaintiff was working
with his supervisor and a licenced plumber whom Hub-Langie had hired
as an independent contractor. The plumber’s job was to make a
connection to a water main.

     When plaintiff arrived at work at 7:00 a.m., his supervisor
instructed him to “go out there and expose the water main for the
licensed plumber.” Plaintiff understood that to mean that he needed
to take a truck, trailer, and excavator to the job site, block a lane
of traffic, and “do a saw cut in the road” where the water main had
been marked.

     After plaintiff cut the asphalt with a saw, he attempted to “pop
the asphalt out” with an excavator that he had used in the past. When
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                                                         CA 14-01640

that did not work, plaintiff shut off the excavator and removed the
key. He then attempted to break up the asphalt with a jackhammer.
Plaintiff was wearing earplugs and safety glasses and, although he was
facing the excavator, he was looking down at the ground. The
excavator bucket struck plaintiff’s left arm, hand, and wrist.
Plaintiff then saw his supervisor, who had his own key to the
excavator, jump off the machine and run over to him.

     The above facts demonstrate that, at the time of the accident,
both plaintiff and his supervisor were acting as members of Hub-
Langie’s “excavating crew” within the meaning of 12 NYCRR 23-9.5 (c).
That regulation provides, in relevant part, that “[n]o person other
than the pitman and excavating crew shall be permitted to stand within
range of the back of a power shovel or within range of the swing of
the dipper bucket while the shovel is in operation” (12 NYCRR 23-9.5
[c]). As the majority acknowledges, both plaintiff and his supervisor
were performing excavation work at the time of the accident (see 12
NYCRR 23-1.4 [b] [19]). Moreover, they were performing that work at
the same time and in the same area of the construction site. Thus, we
conclude that “plaintiff was a member of the ‘excavating crew’ within
the meaning of 12 NYCRR 23-9.5 (c)” because both he and his supervisor
were collectively performing excavation work that was “an integral
part of the excavation operation” (Mingle v Barone Dev. Corp. [appeal
No. 2], 283 AD2d 1028, 1029).

     We respectfully disagree with the majority’s conclusion that
plaintiff was not part of an “excavating crew” simply because
“plaintiff expected to perform the subject excavation work alone, with
no expectation that his supervisor would be joining him and no
awareness that his supervisor had, in fact, arrived and started
operating the excavator.” There is nothing in 12 NYCRR 23-9.5 (c)
that requires members of an excavating crew to be aware that other
members of the crew are working at the same location. In our view,
the facts that plaintiff had been hired to do excavation work, that
his supervisor ordered him to perform excavation work on the day of
the accident, that plaintiff then commenced performing that excavation
work, and that his supervisor then joined him and commenced performing
excavation work on the same area establishes that plaintiff and his
supervisor were both part of an “excavation crew.”

     The majority’s implicit assertion that plaintiff, who was
following his supervisor’s orders, had to have some subjective
understanding that he was part of the excavation crew chosen by his
supervisor inverts the common understanding of how a “crew” is chosen
at a workplace. Instead of a supervisor choosing the composition of a
crew, the majority’s view allows the subordinate employee to opt out,
in his own mind and without telling anyone else, of being assigned to
a particular crew.

     Moreover, the majority’s interpretation of the word “crew”
violates the long-established rule of construction that “general,
commonly used terms . . . may not be limited by judicial . . .
construction . . . and should be accorded their commonly understood
meaning” (Matter of Eastern Pork Prods. Co. v New York State Div. of
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                                                         CA 14-01640

Hous. & Community Renewal, 187 AD2d 320, 323; see Matter of Murawski,
84 AD2d 496, 498; McKinney’s Cons Laws of NY, Book 1, Statutes § 94),
“ ‘without resorting to an artificial or forced construction’ ” (Feher
Rubbish Removal, Inc. v New York State Dept. of Labor, Bur. of Pub.
Works, 28 AD3d 1, 4, lv denied 6 NY3d 711, quoting § 94). The
commonly understood meaning of the word “crew” does not focus on the
individual members’ subjective understanding. Instead, it focuses on
the commonality of the activity in which the members are engaged.
Thus, a “crew” is defined as, among other things, “a group of people
associated together in a common activity or by common traits or
interests” (Merriam-Webster’s Collegiate Dictionary 295 [11th ed
2004]). Neither that definition nor any dictionary definition offered
by plaintiff in his brief focuses on the subjective understanding of
crew members.

     Here, it is undisputed that, at the time of plaintiff’s injury,
both plaintiff and his supervisor were engaged in the common activity
of trying to excavate the water main, plaintiff with the jackhammer
and his supervisor with the excavator. They were, therefore, both
members of an excavating crew. By giving plaintiff’s subjective
understanding the power to redefine what it means to be in a “crew,”
the majority has “limited by judicial construction” the “commonly
understood meaning” of that word (Murawski, 84 AD2d at 498), which is
contrary to the intent of the drafters of 12 NYCRR 23-9.5 (c) as
“ ‘ascertained from the words and language’ ” of the regulation (Frank
v Meadowlakes Dev. Corp., 6 NY3d 687, 692, quoting Statutes § 94).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
