The opinion
Tom and Kahn, JJ.,
dissent in part in a memorandum by Tom, J., as follows: While I agree with the majority that Supreme Court correctly dismissed the Labor Law § 240 (1), the Labor Law § 200, and the common-law negligence claims, I would find that the court also properly dismissed the Labor Law § 241 (6) claim. Accordingly, I respectfully dissent.
Plaintiffs Darren James and Baltazar Andrade were employed by third-party defendant/second third-party defendant Brand Energy Services, LLC (Brand), which had been retained by defendant/third-party plaintiff Alpha Painting and Construction Co., Inc. (Alpha), the general contractor on a project to renovate and paint the Bronx-Whitestone Bridge. Plaintiffs’job was to provide, install and dismantle scaffolding for the project.
Plaintiffs had been dismantling scaffolding on a tower located on the Queens side of the bridge and loading the scaffolding materials onto the boom truck for transport. The boom truck is a flatbed truck with a hoist or “boom” affixed to the back of the flatbed. Defendant/third-party plaintiff Quad Rentals, LLC, an affiliate of Alpha, owned and leased the truck to Alpha, which in turn loaned the truck to Brand via a verbal agreement. Since Brand did not have the necessary equipment to transport the scaffolding parts back to its yard, it borrowed the truck from Alpha. The dismantled parts were lowered onto the flatbed part of the truck using an electric rope hoist operated by Brand. Brand workers had raised the boom about 45 degrees to make it easier to lower the parts onto the truck with *452 the rope and pulley system. While there was sufficient room to lower the boom after the truck was loaded, the Brand workers apparently forgot to return the boom to its resting position.
Plaintiff James testified that after the truck was loaded, James and several other Brand employees were directed to board the boom truck. Just after the truck pulled into the moving lane, James heard a “bang” as the boom struck the road sign and gantry, causing part of the truck to swing into the air and the sign and gantry to fall onto the bridge, and he was thrown onto the pavement, sustaining injuries.
Plaintiff Andrade testified that after he hopped into the cab of the truck, the driver pulled the truck into the middle lane where the accident occurred. During the impact, the boom truck “went up in the air,” causing him to hit his head “hard” on the windshield.
To establish liability under section 241 (6), a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation. An action may be predicated upon Labor Law § 241 (6) only where there has been a violation of a specific, detailed rule governing the conduct at issue (Misicki v Caradonna, 12 NY3d 511, 515 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504 [1993]). “The Code regulation must constitute a specific, positive command,” and “must also be applicable to the facts and be the proximate cause of the plaintiff’s injury” (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263, 271 [1st Dept 2007], lv denied 10 NY3d 710 [2008]). The cited provisions should not be interpreted “too broadly” (Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88 , 92 [1st Dept 2012]), and, as plainly expressed, 12 NYCRR 23-8.2 (d) only applies to mobile cranes. This Court routinely affirms the dismissal of claims under Labor Law § 241 (6) where the supporting Industrial Code provisions are inapplicable to the claim (see e.g. Urbano v Rockefeller Ctr. N., Inc., 91 AD3d 549, 550 [1st Dept 2012]), and we should follow suit here.
In support of plaintiffs’ section 241 (6) claim, the majority finds that an issue of fact exists as to whether defendants violated 12 NYCRR 23-8.2 (d) (3), which pertains to mobile crane travel. I would find that plaintiffs cannot predicate their section 241 (6) claim on this provision because that provision is not applicable to the boom truck used by the plaintiffs, and because plaintiffs’ injuries were not caused by the hoist bouncing over the cab of the truck — which is the focus of the regulation.
12 NYCRR 23-8.2 (d), entitled “Mobile crane travel,” provides:
*453 “(1) A mobile crane traveling to or from one job site to another or traveling on a street or highway shall not carry any jibs, attachments, buckets or other devices or material attached in any way to the boom whether the boom is in the folded position or not. . . .
“(2) Mobile cranes shall not travel with suspended loads unless such crane is under the control of a competent, designated person who shall be responsible for the position of the load, boom location, ground support, travel route and speed of movement.
“(3) A mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab.”
First, contrary to the majority’s contention, I would find that this regulation does not apply to the boom truck at issue, which clearly is not a mobile crane. While “mobile crane” is not formally defined by the definition section of the regulation (see 12 NYCRR 23-1.4), a thorough review of the entirety of section 23-8.2 reveals that a mobile crane has certain elements not present on the boom truck. More specifically, mobile cranes are required to have (1) footings “sufficient to distribute the load so as not to exceed the safe bearing capacity of the underlying material” (12 NYCRR 23-8.2 [b] [1]); (2) outriggers, i.e., a beam that gives stability to the crane (12 NYCRR 23-8.2 [b] [2]); (3) counterweights “as specified by the manufacturers or builders of such cranes or by professional engineers licensed to practice in the State of New York” (12 NYCRR 23-8.2 [e]); and (4) booms with a breaking mechanism and sheave guard (12 NYCRR 23-8.2 [f]). The record evidence, including photographs of the truck, demonstrates that the truck did not have the components required for a mobile crane such as outriggers and counterweights. Thus, it would be improper to treat the boom truck as a mobile crane, and therefore, the provision is inapplicable.
The majority cannot and does not dispute that the subject truck did not have the components of a mobile crane, and resorts to merely noting that “mobile crane” is not defined in the regulation. This is an unconvincing response to the inapplicability of the regulation, which prescribes travel operation of a crane and not a truck. The two vehicles are clearly distinguishable. In addition, because the boom on the truck was located behind the cab and was facing away from it and toward the rear of the truck, it would be physically impossible for the boom to bounce back over the cab, which is the focus of the cited provision. In this case, there is no evidence that the boom bounced over the cab. Moreover, the proof here indicates that the boom was not so high that it could have bounced back over *454 the cab, as the evidence shows that the boom was raised only at either 45 or 60 degrees. Nor were plaintiffs’ injuries caused by the boom bouncing over the cab as required by the “specific” language of the regulation (Misicki v Caradonna, 12 NY3d at 515 ). Rather, they were caused when the boom hit the road sign.
In Braun v Fischbach & Moore ( 280 AD2d 506 [2d Dept 2001]), relied on by the majority, the Second Department found an issue of fact as to whether the defendant violated section 23-8.2 where the boom of a crane located on a work train was raised high enough that it collided with a support beam, causing the crane to become dislodged from the turntable and pushed onto the flatbed car also located on the train and where the plaintiff was standing. However, crucially, it was undisputed that a mobile crane was involved in that case, and not a boom truck. Moreover, that decision did not indicate how high or at what angle the boom was raised. Thus, this case is not controlled by Braun .
Accordingly, I would affirm the order on appeal in its entirety.