MURCIN, JOEL v. MAC CONTRACTING, LLC.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Joel Murcin (plaintiff) at a construction site when he was struck and run over by a backhoe. During the course of his operation of the backhoe, plaintiff parked the machine on a downward slope and then exited the machine in order to remove large stones from the front bucket and to place the stones by hand in forming a drainage system. During this process, the unoccupied backhoe moved down the *1765 slope, knocked plaintiff to the ground and eventually came to rest with plaintiff trapped underneath. The backhoe was leased to plaintiff’s employer by defendant. Contrary to plaintiffs’ contention, Supreme Court properly denied their cross motion insofar as it sought summary judgment on the issue of negligence. Even assuming, arguendo, that plaintiff set the parking brake before exiting the machine, we conclude that plaintiffs failed to establish that the alleged negligence of defendant in the maintenance or repair of the backhoe resulted in a defect in the parking brake that caused the machine to roll down the slope and injure plaintiff (cf. McDonald v Grasso, 220 AD2d 867, 868-869 [1995]). However, we agree with plaintiffs that, under the circumstances of this case, the backhoe is a “motor vehicle” for purposes of the brake maintenance requirement in Vehicle and Traffic Law § 375 (1) (a) (see § 125; PJI 2:86). We therefore modify the order by granting plaintiffs’ cross motion to the extent that they sought a determination to that effect. Present — Scudder, P.J., Centra, Fahey, Carni and Valentino, JJ.