Mather v. HFZ KIK 30th St. Owner LLC

Summary

The Appellate Division, First Department affirmed an order granting plaintiff partial summary judgment on his Labor Law § 241(6) claim based on an alleged violation of Industrial Code § 23-9.4(e). The court held that pushing an unsecured dumpster with an excavator violated the regulation and caused plaintiff's injury, while finding an issue of fact concerning whether the excavator was "not in use" under Industrial Code § 23-9.5(c).

Holdings

1. The excavator handled the dumpster when its operator began moving it, so Industrial Code § 23-9.4(e) applied.
2. The undisputed failure to rig the dumpster as required by Industrial Code § 23-9.4(e), together with the unsafe decision to push it, constituted negligence and supported plaintiff's partial summary judgment on the Labor Law § 241(6) claim.
3. Plaintiff was not required to establish freedom from comparative negligence to obtain summary judgment on liability under Labor Law § 241(6).
4. Defendants and the third-party defendant were not entitled to summary judgment dismissing the § 23-9.5(c) claim because a factual issue existed as to whether the excavator was 'not in use' when the accident occurred.

Questions Presented

1. Whether the excavator operator violated Industrial Code § 23-9.4(e) by pushing the dumpster without securing or rigging it.
2. Whether that regulatory violation established negligence and supported partial summary judgment for plaintiff on his Labor Law § 241(6) claim.
3. Whether plaintiff's alleged comparative negligence barred summary judgment on liability under Labor Law § 241(6).
4. Whether a triable issue existed as to whether the excavator was 'not in use' under Industrial Code § 23-9.5(c) when the accident occurred.

Disposition

affirmed