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Michael Moscati v. Consolidated Edison Co. of NY, Inc. et al.

This is a very interesting case. In this decision from the Appellate Division, Second Department, the worker was operating an excavator next to a creek to remove pieces of timber that had previously formed a bulkhead. During the work, the excavator tipped or slid into the creek, injuring the operator. The worker claimed violations of a group of NYCRR regulations, Labor Law 241(6) and 200. Con Ed, the site’s owner asked the court to dismiss the suit. The lower court did, but the Appellate Division, Second Dept. reinstated the entire claim. The Court found the NYCRR regulations, 23-4.2(a) and 23-4.4(a), which require proper footing for certain work involving trenches and excavation, to be applicable to this case. Also, 23-9.4(c) and 23-9.5(a) which require temporary shoring or sheeting for certain work involving power shovels and backhoes and other excavating machines, were also held to be potentially applicable. As for the Labor Law 200 claim, the Court said that this was a situation where both types of violations of that law were applicable and should not be dismissed, the one protecting workers from premises defects and the other from dangerous methods or manners of work. For the latter one, the Court said that Con Eds on-site representative and other factors gave them the requisite authority to control the site, regardless of whether they exercised that control.

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