Mendes v State of New York
Attorneys and Parties
Brief Summary
Construction site safety—whether Industrial Code (12 New York Codes, Rules and Regulations (NYCRR) § 23-9.7(e)) [Riding—no person shall be permitted to ride on running boards, fenders, or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided] applies when a claimant is in the back of a box truck that begins to move.
The Court of Claims granted summary judgment to the State dismissing the Labor Law § 241(6) [nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety in areas where construction, excavation, or demolition work is performed] claim to the extent predicated on Industrial Code § 23-9.7(e), concluding the provision was inapplicable because the truck was not moving.
The grant of summary judgment dismissing the Labor Law § 241(6) claim predicated on Industrial Code § 23-9.7(e).
The State failed to make a prima facie showing that § 23-9.7(e) was inapplicable. Its affidavit was conclusory and from a non-witness, while both the claimant and a coworker testified the truck was moving, creating a triable issue of fact.
Background
While mixing paint in the back of a box truck at a worksite, the claimant felt the truck begin to move. As she attempted to exit through the rear, a coworker simultaneously raised the lift gate. She ran toward the back, lost her balance, fell, and her leg became caught in the lift gate, causing injury.
Lower Court Decision
The Court of Claims granted the State's motion for summary judgment dismissing the portion of the Labor Law § 241(6) claim based on Industrial Code (12 NYCRR) § 23-9.7(e), finding the regulation inapplicable because the truck was not moving.
Appellate Division Reversal
Reversed insofar as appealed from. The Appellate Division held the State did not meet its prima facie burden. The quality control officer’s affidavit was conclusory and not based on personal knowledge, and deposition testimony from the claimant and coworker indicated the truck was moving. The motion to dismiss the § 241(6) claim predicated on § 23-9.7(e) should have been denied.
Legal Significance
Reaffirms that defendants seeking summary judgment on Labor Law § 241(6) claims must provide competent, non-conclusory evidence with personal knowledge to show a regulation’s inapplicability. Industrial Code § 23-9.7(e) may apply to injuries involving being in or riding on a moving truck at a construction site, and factual disputes about whether a vehicle was moving preclude summary judgment.
Conflicting deposition testimony about whether a truck was moving creates a triable issue under Labor Law § 241(6) predicated on Industrial Code § 23-9.7(e); conclusory affidavits from non-witnesses are insufficient to establish inapplicability on summary judgment.