Julian Figueroa v. Empire Sewer & Water Inc.; 28-41 Steinway, LLC v. Corona Ready Mix Inc.
Attorneys and Parties
Brief Summary
Construction site safety involving excavator operations and delivery worker protections under New York Labor Law § 241(6) [imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers and to comply with specific Industrial Code regulations] and Industrial Code (12 NYCRR) § 23-9.5(c) [bars anyone other than the pitman and excavating crew from standing within the range of the back of a power shovel or the swing of the dipper bucket while the shovel is in operation].
Granted plaintiff partial summary judgment on Labor Law § 241(6) against 28-41 Steinway, LLC based on a violation of 12 NYCRR § 23-9.5(c); denied Steinway’s cross-motion to dismiss that claim; granted Corona summary judgment dismissing Steinway’s contractual indemnification and insurance procurement claims; denied Corona’s motion as to Steinway’s common-law indemnification and contribution claims.
The denial of Corona’s motion for summary judgment on Steinway’s common-law indemnification and contribution claims.
No triable issue of Corona’s negligence existed; plaintiff chose on his own to approach the excavator operator to obtain a delivery receipt signature, and Corona’s general requirement to obtain a signature did not direct him into an unsafe area.
Background
Steinway, the property owner, hired a contractor to replace sewer pipes. The contractor ordered concrete from Corona. Plaintiff, a Corona delivery worker, approached an excavator operator at the site to obtain a signature for the delivery receipt. After being told to step back and as he walked away, the excavator, moving in reverse while the operator was looking forward, ran over plaintiff’s foot. Cones or tape marked the perimeter, but workers, including a flagger and the foreman-operator, allowed plaintiff to approach the excavator.
Lower Court Decision
The Supreme Court, New York County, held that Labor Law § 241(6) applied to plaintiff as a protected worker making a concrete delivery during ongoing construction; found a violation of Industrial Code § 23-9.5(c) because plaintiff was within the range of the excavator’s arm and bucket functioning as a power shovel; rejected Steinway’s arguments that the machine had to be actively excavating or that perimeter cones/tape sufficed; granted plaintiff partial summary judgment on § 241(6) against Steinway and denied Steinway’s cross-motion. The court granted Corona summary judgment dismissing Steinway’s contractual indemnification and insurance procurement claims for lack of an agreement, but denied Corona’s motion on common-law indemnification and contribution, finding issues of fact as to Corona’s alleged negligence.
Appellate Division Reversal
Modified to grant Corona summary judgment dismissing Steinway’s common-law indemnification and contribution claims, holding there was no evidence Corona was negligent or directed plaintiff into danger; otherwise affirmed, including the grant of partial summary judgment to plaintiff on Labor Law § 241(6) based on a violation of Industrial Code § 23-9.5(c). The court emphasized that an excavator’s arm and bucket operate as a power shovel and need not be actively digging to be 'in operation,' and that plaintiff’s comparative negligence, if any, does not bar § 241(6) liability.
Legal Significance
Clarifies that delivery workers are protected under Labor Law § 241(6) when delivering materials during ongoing construction; confirms Industrial Code § 23-9.5(c) applies to excavators functioning as power shovels and does not require active digging to be 'in operation'; underscores owners’ nondelegable duty to keep non-crew outside the machine’s swing/range. Also narrows exposure for material suppliers by eliminating common-law indemnification and contribution absent evidence of their own negligence.
Owners face § 241(6) liability for violations of 12 NYCRR § 23-9.5(c) when non-excavation workers are permitted within the swing or travel range of an operating excavator, while suppliers like concrete deliverers are not liable for common-law indemnification or contribution without proof they directed the worker into danger.