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

1414
CA 12-00542
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


JOEL MURCIN AND MARIA MURCIN, INDIVIDUALLY AND
AS HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MAC CONTRACTING, LLC, DEFENDANT-RESPONDENT.


GARVEY & GARVEY, BUFFALO (DENNIS J. GARVEY OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

LAW OFFICE OF LAURIE G. OGDEN, BUFFALO (GARY O’DONNELL OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered March 29, 2011. The order, among other things,
denied plaintiffs’ cross motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the third ordering
paragraph and granting that part of the cross motion seeking a
determination that the backhoe involved in the accident is a “motor
vehicle” for purposes of the application of Vehicle and Traffic Law §
375 (1) (a) and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Joel Murcin (plaintiff) at a construction site
when he was struck and run over by a backhoe. During the course of
his operation of the backhoe, plaintiff parked the machine on a
downward slope and then exited the machine in order to remove large
stones from the front bucket and to place the stones by hand in
forming a drainage system. During this process, the unoccupied
backhoe moved down the slope, knocked plaintiff to the ground and
eventually came to rest with plaintiff trapped underneath. The
backhoe was leased to plaintiff’s employer by defendant. Contrary to
plaintiffs’ contention, Supreme Court properly denied their cross
motion insofar as it sought summary judgment on the issue of
negligence. Even assuming, arguendo, that plaintiff set the parking
brake before exiting the machine, we conclude that plaintiffs failed
to establish that the alleged negligence of defendant in the
maintenance or repair of the backhoe resulted in a defect in the
parking brake that caused the machine to roll down the slope and
injure plaintiff (cf. McDonald v Grasso, 220 AD2d 867, 868-869).
However, we agree with plaintiffs that, under the circumstances of
this case, the backhoe is a “motor vehicle” for purposes of the brake
                                 -2-                          1414
                                                         CA 12-00542

maintenance requirement in Vehicle and Traffic Law § 375 (1) (a) (see
§ 125; PJI 2:86). We therefore modify the order by granting
plaintiffs’ cross motion to the extent that they sought a
determination to that effect.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
