Fiorella & Friedman LLP, New York, NY (Stewart B.
Greenspan of counsel), for appellant-respondent.
and Bakalor, P.C., Garden City, NY (Timothy J. Keane of
counsel), for respondent-appellant.
Perecman Firm, PLLC, New York, NY (David H. Perecman and
Peter D. Rigelhaupt of counsel), for respondent.
REINALDO E. RIVERA, J.P. MARK C. DILLON CHERYL E. CHAMBERS
SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
consolidated action to recover damages for personal injuries,
the defendant Circle Rose Contracting, Inc., appeals, as
limited by its brief, from so much of an order of the Supreme
Court, Kings County (Bayne, J.), dated February 18, 2015, as
denied that branch of its motion which was for summary
judgment dismissing the cause of action alleging a violation
of Labor Law § 241(6) insofar as asserted against it,
and the defendant Pine Hollow Country Club, Inc.,
cross-appeals from so much of the same order as denied that
branch of its motion which was for summary judgment
dismissing the cause of action alleging a violation of Labor
Law § 241(6) insofar as asserted against it.
that the order is reversed insofar as appealed and
cross-appealed from, on the law, with one bill of costs, and
those branches of the defendants' separate motions which
were for summary judgment dismissing the cause of action
alleging a violation of Labor Law § 241(6) insofar as
asserted against each of them are granted.
plaintiff allegedly was injured while riding on the platform
of a pickup truck. On the date of the accident, the plaintiff
was performing demolition work on the property of the
defendant Pine Hollow Country Club, Inc. The defendant Circle
Rose Contracting, Inc., was the general contractor on the
project. Specifically, the plaintiff had been tasked with
loading tiles and concrete into plastic containers, which
were then placed on the platform of a pickup truck. The
plaintiff's foreman then drove the truck a short distance
to a nearby dumpster. At the foreman's direction, the
plaintiff rode on the back of the truck, with the tailgate
closed, to ensure that the containers remained in place. The
accident occurred as the truck was returning with the empty
containers. When the rear wheel of the truck came in contact
with a retaining wall, the truck came to a sudden stop, and
the plaintiff hit his left knee and fell to the bed of the
as relevant to this appeal and cross appeal, the plaintiff
asserted a cause of action pursuant to Labor Law §
241(6) predicated on an alleged violation of section
23-9.7(e) of the Industrial Code (12 NYCRR 23-9.7[e]), which
reads as follows: "Riding. No person shall be suffered
or 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."
The defendants separately moved, inter alia, for summary
judgment dismissing the Labor Law § 241(6) cause of
action insofar as asserted against each of them, arguing that
the platform of a pickup truck is a "properly
constructed and installed... platform" within the
meaning of section 23-9.7(e). The Supreme Court denied those
branches of the motions.
interpretation of an Industrial Code regulation presents a
question of law for the court" (Penta v Related
Cos., 286 A.D.2d 674, 675; see Kelmendi v 157 Hudson
St., LLC, 137 A.D.3d 567, 568). Moreover, in
interpreting a regulation, this Court must assume that the
promulgating agency " did not deliberately place a
phrase in the [regulation] which was intended to serve no
purpose... and each word must be read and given a distinct
and consistent meaning'" (Matter of Rodriguez v
Perales, 86 N.Y.2d 361, 366, quoting Matter of
Smathers, 309 NY 487, 495).
by the above principles, the word "platform" as
used in subdivision (e) of section 23-9.7 must reasonably be
read to include the platform of a pickup truck. While such a
platform is normally intended for transporting cargo, the
Vehicle and Traffic Law contemplates that it may also be
used, without restriction, to carry people over distances of
less than five miles (see Vehicle and Traffic Law
§ 1222). Thus, it is reasonable to interpret section
23-9.7(e) as excluding from its scope an activity that is not
prohibited by Vehicle and Traffic Law § 1222.
under the facts presented, the defendants established, prima
facie, that the plaintiff could not establish a violation of
section 23-9.7(e) of the Industrial Code. In opposition, the
plaintiff failed to raise a triable issue of fact (see
Zuckerman v City of New York, 49 N.Y.2d 557, 562).
Accordingly, the Supreme Court erred in denying those
branches of the defendants' separate motions which were
for summary judgment dismissing the Labor Law § 241(6)
cause of action insofar as asserted against each of them.
light of our determination, we need not reach the