Opinion
Argued February 6, 1997
Decided March 20, 1997
John J. Wrenn, Brooklyn, for Fred Todino Sons, Inc., appellant-respondent.
Coen Geoghan, P.C., Brooklyn ( Sean J. Geoghan of counsel), for Todino Sewer Water Service, Inc., appellant-respondent.
Klar, Piergrossi Nunez, New York City ( Martin S. Rothman, Lawrence A. Piergrossi and Alyne I. Diamond), for respondent-appellant.
Kelly McGlynn, New York City ( Martin M. McGlynn of counsel), for F V Mechanical Plumbing Heating Corp., respondent.
CROSS APPEALS, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered March 21, 1996, which modified, on the law, and, as modified, affirmed an order of the Supreme Court (Barry Salman, J.), entered in Bronx County, (a) denying a cross motion by plaintiff for summary judgment, (b) denying a cross motion by defendant Todino Sewer Water Service, Inc. (Todino Sewer) for summary judgment dismissing plaintiff's claims pursuant to Labor Law § 240 (1) and § 241 (6), but granting said cross motion as to plaintiff's claims pursuant to Labor Law §§ 241-a and 242, (c) denying a cross motion by third-party defendant Fred Todino Sons, Inc. (Fred Todino) for summary judgment dismissing plaintiff's claims pursuant to Labor Law §§ 200, 240 (1) and § 241 (6), but granting said cross motion as to plaintiff's claims pursuant to Labor Law §§ 241-a and 242, and (d) denying a cross motion by defendant and third-party plaintiff F V Mechanical Plumbing Heating Corp. (F V) for summary judgment dismissing plaintiff's claims pursuant to Labor Law §§ 200, 240 (1) and § 241 (6), or, in the alternative, for summary judgment on said movant's cross claim for indemnification against Todino Sewer, but granting said cross motion as to the claims pursuant to Labor Law §§ 241-a and 242. The modification consisted of granting Todino Sewer's cross motion for summary judgment dismissing the Labor Law § 240 (1) cause of action, granting Fred Todino's cross motion for summary judgment dismissing the Labor Law §§ 200, 240 (1) and common-law negligence causes of action, granting F V's cross motion for summary judgment dismissing the Labor Law §§ 200, 240 (1) and common-law negligence causes of action, and granting summary judgment against Todino Sewer on the indemnification claim of F V with respect to liability under Labor Law § 241 (6). The following question was certified by the Appellate Division: "Was the order of this Court, which modified the order of the Supreme Court, properly made?"
Plaintiff, an employee of Fred Todino Sons, Inc., was excavating a ditch that at the time was 8 to 9 1/2 feet deep. The dirt removed from the ditch or trench was put into a "bucket" that was part of a truck or crane. The "crane" was a backhoe machine with a "bucket" that was actually a large scoop attached to a mechanical arm. Plaintiff was "sort of in command" that day, "telling the others what to do", and this included telling the crane/backhoe operator when to lower the bucket into the trench. Before the accident, plaintiff told and hand signaled the crane/backhoe operator that he was about to go into the ditch and that the operator should not move the machine. As plaintiff was beginning to lower himself into the ditch by holding on to the side of the trench at street level, intending to step down upon wood slats that were constructed as makeshift steps along the walls of the trench, the bucket of the backhoe came down on his left hand and crushed it. He did not fall into the trench, but held onto a water pipe with his other hand and leaned on the pipe. At the time, his feet were not touching anything.
The Appellate Division concluded that the IAS Court erred to the extent it relied on an engineer's opinion in determining whether Labor Law § 240 applies to plaintiff's accident and plaintiff's cause of action premised on section 240 (1) should have been dismissed; that the specific Industrial Code regulation relating to the dangerous proximity of workers to excavation equipment ( see, 12 N.Y.CRR 23-4.2 [k]) is not a mere general regulatory provision declaratory of common-law principles and that the IAS Court therefore properly denied summary judgment to defendant Fred Todino on this issue ( see, Labor Law § 241); that the IAS Court correctly denied summary judgment to defendants Todino Sewer and F V on their asserted ground that they did not actually supervise the work, since the duties imposed by Labor Law § 241 (6) are nondelegable; that no liability attaches vicariously under Labor Law § 200 or under the common law and, accordingly, the IAS Court should have dismissed these claims; that while the record reveals the occasional physical presence of an F V superintendent at the construction site, it contains no evidence that F V actually controlled plaintiff's work; that its liability would therefore be entirely vicarious with respect to Labor Law § 241 (6), the only cause of action properly remaining; and that, accordingly, F V was entitled to summary judgment on its indemnification claim.
Elezaj v Carlin Constr. Co., 225 A.D.2d 441, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative. The central argument urged on this appeal — that the Industrial Code provisions relied upon by plaintiff are too general to support a cause of action under Labor Law § 241 (6) ( see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-505) — was not preserved for our review. Although the Appellate Division properly could reach the argument in the exercise of its discretion, "[t]his Court has no power to review either the unpreserved error or the Appellate Division's exercise of discretion in reaching that issue" ( Feinberg v Saks Co., 56 N.Y.2d 206, 210-211). The remaining arguments of the parties are without merit.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur in memorandum.
Order affirmed, etc.