The facts of this case have previously been recited in this Court's March 14, 2006, Decision and Order. The motions before the Court are for dismissal of Plaintiff's complaint and cross-claims or, in the alternative, for indemnification. Specifically, movants argue there are no cognizable causes of action under New York common law negligence, Labor Law §§200, 240(1), 241(1) - (10), and that Telergy did not breach the terms and conditions of its permit with New York State so as to give rise to a cause of action to Plaintiff. Plaintiff's head crush injury, leaving him totally blind, resulted in a grave injury so as to impose vicarious liability on the general contractor entitling it to full common law indemnification from a supervising, contributing, directing party, including Plaintiff's employer. All submissions of the parties have been considered and are enumerated in Appendix A', attached hereto.

Notably, Plaintiff's affidavit opposing this motion attempts to vary, supplement, and correct his prior deposition testimony, providing factual support for his causes of action. To the extent, however, that assertions made in affidavits opposing a summary judgment motion directly contradict the speaker's prior deposition testimony, they are insufficient to defeat the motion. Such assertions are properly characterized as a "feigned attempt to avoid the consequences" of the prior testimony. Columbus Trust Co. v. Campolo, 110 AD2d 616, 616-17 (2d Dep't 1985), aff'd 66 NY2d 701 (1985).

Plaintiff was injured while in the process of repairing his employer's trenching machine, which he was also assigned to act as its operator. The repairs were being done in the field and at his direction and under his control. Mastec, as general contractor, subcontracted with Plaintiff's employer, Marais, for the trenching machine, an operator, and maintenance/repair of the machine. This was an exclusive arrangement. Telergy had inspectors on-site which, in order to process payment, monitored the depth, placement, and footage of trenching/laid-cable. Although Telergy inspectors performed safety inspections, there is no dispute that this French-made trenching machine was unique and that Plaintiff previously performed similar repairs without injury. No tools or equipment were provided by Telergy or Mastec to Plaintiff to accomplish this repair. Likewise, Plaintiff received no direction, supervision or control over his methods or his task. Plaintiff had familiarity with the machine, having [*2]previously performed this same repair.

Plaintiff was standing on the ground, working at eye/head level at the time of the mishap, prying at the pinion housing hinged-door to, first, loosen it and then, later, open it. Never before had the housing door violently swung left-to-right when performing the initial loosening process. When the door swung open, it pinned Plaintiff's head against the trenching machine, causing horrific head injuries.

Absent Telergy or Mastec's control over the injurious activity or notice of any related defect, common law negligence and Labor Law §200 have no application to the facts of this case. To be sure, " an essential precondition to liability under either common-law negligence or Labor Law §200 is the authority to control the activity bringing about the injury." Carney v. Allied Craftsman General Contractors, Inc., 9 AD3d 823, 824 (3d Dep't 2004), citing to Soshinsky v. Cornell Univ., 268 AD2d 947, 947 (3d Dep't 2000). Physical presence at a work site and/or general supervisory control is not enough, there must be a showing of actual or constructive notice of an unsafe condition and control of the site. "Notably, general supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law §200." Riccio v. Shaker Pine, Inc., 262 AD2d 746 (3d Dep't 1999), citing to Kvandal v. Westminster Presbyt. Socy. of Buffalo, Inc., 254 AD2d 818 (4th Dep't 1998); Riley v. John W. Stickl Constr. Co., Inc., 242 AD2d 936, 937 (4th Dep't 1997); McCune v. Black Riv. Constructors, 225 AD2d 1078, 1079 (4th Dep't 1996).

The uniqueness of the machine provides additional support that no other party had experience in its mechanical operation or repair processes so as to give rise to actual or constructive notice of an unsafe condition. That's not to say, however, that Telergy or Mastec could ignore any notice or knowledge of identifiable unsafe practices or conditions. But rather, as here, where Plaintiff's injuries arise out of an alleged defect in the methods or materials used by him to repair the trenching machine — over which neither Telergy or Mastec exercised the requisite degree of supervision and control — liability will not attach. Ross v. Curtis-Palmer, 81 NY2d 494, 506 (1993)Plaintiff's Labor Law §240(1) cause of action must fail. Plaintiff's injuries were not caused by either the absence of statutorily-enumerated safety devices, nor did they result from the limited type of elevation-related hazards protected by Labor Law §240(1). See Schwab v. A.J. Martini, Inc., 288 AD2d 654 (3d Dep't 2001). While the injury sustained by Plaintiff is horrendous, the activity in which he was engaged is not one protected by statute. Plaintiff was not exposed to a special hazard'. Plaintiff was injured while working with an object at the same level as himself. See Misseritti v. Mark IV Constr. Co., Inc., 86 NY2d 487 (1995). Plaintiff was not working at an elevated work site, but rather standing on the ground working at head-level. Plaintiff testified in his deposition to being 5'7" - "5'8" tall. To this end, Plaintiff testified: "I had positioned it to be about head level." (Plaintiff EBT 8/28/01 p. 135; lines14-15). The Court of Appeals previously held:

"The special hazards' to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity."

Ross v. Curtis-Palmer, 81 NY2d 494 (1993).

It is Plaintiff's assertion that the effects of gravity caused the door to swing open and pin Plaintiff, notwithstanding Plaintiff and his co-worker's direct application of physical force on the pry bars being used to loosen the housing. To this end, Plaintiff's affidavit avers the machine (and, thus, the housing) was situated on an incline and was not level. In his deposition, however, Plaintiff testified that on the morning of the accident: "I moved the machine to a flatter surface and positioned the wheel, at that time, which I believe it was the best way to do it."

His deposition testimony also confirmed that the teeth of the trench-cutting wheel were in contact with the ground, imbedded "a little bit" into the ground, and turned the machine off. The safety devices enumerated at Labor Law §240(1) have no application to this factual scenario. Despite Plaintiff's complaint that a come-along was not available for his use, his own deposition testimony provides proof that the come-along would not be used until after the casing had, first, been loosened.' Since Plaintiff sustained his injury while engaged in loosening' the casing, the absence of a come-along on the work site is irrelevant. Plaintiff suffered injuries as a result of his manner and methods of repair. Plaintiff had prior experience in repairing the trenching machine on a work site and, according to his own testimony, never complained that he lacked proper training or could only perform the task at his employer's remote warehouse. Plaintiff's opposing affidavit attempts to call into question Defendants' denial of his request to make the repairs at his employer's remote warehouse. However, a reading of his deposition testimony reveals that Plaintiff's interest in doing another repair — not the injury-causing activity — led him to make the inquiry of his employer, Defendant Marais.

Plaintiff's Labor Law §§241, 241 (6) causes of action fail as well. Insofar as §241(1)-(5) and (7)-(10) have no applicability to the facts of this case, they are dismissed. Specifically, with regard to Labor Law §241(6), the industrial codes alleged to have been violated either have no application to the facts of this case or are not specific enough upon which to base a §241(6) cause of action. N.Y.C.R.R. §§23-9.1, 23-9.2, 23-9.2(g) have no application to the facts. While these provisions guard against leaving equipment with loads, blades or buckets suspended by requiring such to be lowered to the ground or to the lowest travel end of the equipment, no such hazards were present. Even assuming the Marais trenching machine is covered by this statute addressing "material handling equipment," Plaintiff testified that the machine was turned off, relocated to more level ground, and the saw blade teeth had been embedded into the earth prior to his repair activities. He did not previously testify the ground was unlevel, the machine was tipped to one side, or that a Mastec employee told him where to place the machine for repair. Plaintiff's affidavit opposing this motion — describing the machine as being on a slope and the wheel tipped to the side (inferring the machine could be at risk of tipping over) and that David Rick (Mastec Supervising Foreman) told him where to place the machine — is inapposite.

N.Y.C.R.R. §23-1.8 is equally unavailing. Plaintiff previously testified he was provided with personal protective equipment and that, at the time of the accident, he "believe[d]" he was wearing a hard hat, but could not remember if he was wearing [*4]goggles. Defendants' submissions include a photograph depicting the accident scene; a hard hat lies abandoned on the ground in proximity to the gear box. Jeffrey Reyome, a construction inspector for Telergy, in 2005 testified seeing Plaintiff wearing his hard hat earlier that day and further identified the hard hat lying on the ground next to the pinion housing as being the one he had seen Plaintiff wearing. Plaintiff's affidavit opposing this motion states that he now "believes" he was not wearing a hard hat. This proffer is unavailing insofar as his 2001 deposition testimony stated that he "believe[d]" he was wearing his hard hat. Sadly, goggles could not have protected Plaintiff's eyes from injuries sustained as a result of the crushing' head injury inflicted.

§23-9.5(c) and (f) have no application since Plaintiff was designated by his employer to operate the trencher on this job site; the accident did not happen while the machine was in operation; the trencher was turned off; and, the saw blade's teeth had been embedded into the ground prior to repair. Lastly, Courts have previously held that the "General Responsibility of Employers" provision found at 12 N.Y.C.R.R. §23-1.5 are general provisions, not specific enough upon which to premise a Labor Law §241(6) cause of action. Creamer v. Amsterdam High School, 241 AD2d 589 (3d Dep't 1997), citing to Knudsen v. Pentzien, Inc., 209 AD2d 909, 910-911 (3d Dep't 1994).

Telergy's permit from the State does not constitute a contract for which Plaintiff was a third-party beneficiary. Regardless, Plaintiff has not provided any authority to assert a private right of action. The function of the DOT permit, imposing certain terms and conditions, was to grant Telergy access to the State highway. The contract for the construction of this project was between Telergy and Mastec (and d/b/a Wilde Construction). See Pyramid Co. of Onondaga v. New York State Dep't of Labor, 223 AD2d 285 (3d Dep't 1996).

For the reasons set forth above, the Court need not pass upon the merits of either Telergy's or Mastec's requests for contractual and/or conditional orders of indemnification against Marais and/or Mastec.

Plaintiffs' complaint is dismissed as are any cross-claims amongst the Defendants.

SO ORDERED

DATED: March 19, 2007, at Chambers, Canton, New York.

DAVID DEMAREST, J.S.C.

ENTER: