New York State Court of Claims

New York State Court of Claims

SHERMAN v. THE STATE OF NEW YORK, #2000-015-051, Claim No. 101810, Motion Nos. M-61306, CM-61497


Synopsis


The duty imposed upon an owner of affected tenant under 12 NYCRR part 47 to clearly mark glass doors with warning decals is delegable.

Case Information

UID:
2000-015-051
Claimant(s):
RONA SHERMAN
Claimant short name:
SHERMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101810
Motion number(s):
M-61306
Cross-motion number(s):
CM-61497
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Bloomberg and Magguilli, EsquiresBy: Michael C. Magguilli, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, Esquire
Assistant Attorney General

D'Agostino, Krackeler, Baynes & Maguire, P.C.
By: Brendan F. Baynes, Esquire
Third-party defendant's attorney:

Signature date:
July 17, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The motion of the defendant for an order pursuant to CPLR 3211 (a) (1) dismissing the claim upon the ground that documentary evidence establishes that the County of Albany owns, maintains and operates the doorway where the accident occurred and, therefore, the State of New York is not a proper party is denied. The cross-motion of the claimant for an order granting her partial summary judgment on the liability issue premised upon the res judicata or collateral estoppel effect to be accorded the decision in Feisthamel v State of New York, 89 AD2d 756, is denied. Pursuant to permission granted in this Court's decision and order filed on January 12, 2000, the claimant served a late claim to recover for personal injuries which claim was filed on January 20, 2000. Although the defendant has not yet served its answer, the attorneys for the parties agreed during a preliminary conference held on April 6, 2000 that the defendant's CPLR 3211 dismissal motion and the claimant's cross-motion would be accorded summary judgment treatment upon the issue of the State's responsibility for placing warning markings upon the door involved in this incident. As a consequence, the notice requirement of CPLR 3211 (c) has been complied with and the motion and cross-motion are being accorded summary judgment treatment upon the specified issue.

Paragraph 6 of the claim describes the incident as follows:
6. That the injuries and damages for which claim is made arose in the following manner: On September 17, 1998, at approximately 11:45 a.m., claimant was walking from the Empire State Plaza to the Pepsi Arena towards the elevated glass enclosed walkway above Eagle Street, Albany, New York in an easterly direction to enter the elevated walkway entrance of the Pepsi Arena to exit the Empire State Plaza and proceed to Eagle Street, Albany, New York. As claimant walked from the Empire State Plaza to enter onto the elevated walkway connecting the Empire State Plaza with the Pepsi Arena, claimant was caused to walk into the unmarked glass doors located at the said entrance of the said elevated walkway connecting the Empire State Plaza with the Pepsi Arena. When claimant was walking into the said elevated walkway, claimant was unable to see the glass doors due to the fact that the glass doors did not have any warning devices or labels or stickers of any kind or nature affixed to the glass. Claimant was caused to strike the unmarked glass doors with her nose and face, breaking claimant's nose and causing claimant to suffer multiple bruises and contusions and the pain and suffering thereof, along with other serious physical injuries.
The claim goes on to allege that the defendant had control of the entranceway and the glass doors where the incident occurred and the State's negligence caused claimant's injuries. The Attorney General argued in opposition to the late claim motion that, pursuant to contract documents between the State of New York and Albany County concerning the construction and maintenance of the pedestrian walkway linking the Empire State Plaza to the Pepsi Arena, the County was responsible for the maintenance and repair of the walkway and its doors and that the State remained "responsible for the operations and maintenance of all walkway areas inside of the Empire Plaza". Defense counsel took the position that the doors into which the claimant walked were outside of the Empire State Plaza. In resolving that issue in the decision and order filed on January 12, 2000, this Court held:
the law is settled that pursuant to 12 NYCRR part 47 the State is responsible for placing the proper markings upon all transparent doors located within the Empire State Plaza (Feisthamel v State of New York, 89 AD2d 756). It appears from the submissions contained in the motion record that the County of Albany is the owner of the elevated pedestrian walkway and the unmarked plate glass doors. However, the precise location of those doors as either being within or without of the Empire State Plaza is not clear from this motion record.
During 1965, the State of New York and Albany County entered into an agreement entitled "South Mall Contract" for purposes of the construction and financing of the Empire State Plaza. Pursuant to that contract, Albany County leased the Empire State Plaza back to the State of New York for a term of 40 years with the lease expiring on December 31, 2004. Section 4.16 of the contract provides that upon the expiration of the lease the County agrees to convey to the State title to all of the leased premises. Sections 4.09 and 4.10 of the contract provide:
§4.09. State's right to possession. Except as otherwise provided in § § 2.01(c) and 2.07 with respect to public streets, the State shall be in sole possession of all the South Mall and of the Project and of all Public Improvements constructed thereon, on and after the date of the beginning of the term of the lease set forth in this Article, and shall keep the same in good order and condition.

§4.10. Operation, maintenance and repair. From and after the date it shall be in possession, pursuant to § 4.09 above, the State shall be responsible for, and pay all costs of, operating all Public Improvements constructed in the South Mall; maintaining the same in good condition; and making all necessary repairs and replacements, interior and exterior, structural and non-structural. The State's responsibility hereunder shall include maintenance of the Arterial Highway, and all other roadways and walkways within the South Mall, with the exception of the public streets which the City is to maintain and shall be legally responsible for as provided in § 2.07.
Pursuant to chapter 41 of the Laws of 1985, the County undertook the construction and development of a civic center located southeast of the Empire State Plaza which is currently denominated as the Pepsi Arena. The County desired to construct an enclosed pedestrian walkway linking the Pepsi Arena with the Plaza and by agreement dated January 1, 1990 entered into a contract with the State of New York regarding the construction, operation and maintenance of the walkway. Sections 1 and 3 of the walkway contract provide that the County will design, construct and equip the walkway and ensure that it is in compliance with all applicable "life safety and construction statutes, codes, rules and regulations". Section 4 of the walkway contract governing operation, maintenance and repair of the walkway provides:
The County agrees as integral to Civic Center operations to operate, maintain and repair the Walkway on a periodic and continuous basis to insure retention of the original design, structural integrity and appearance. Operation and maintenance shall include, without limitation thereto, all cleaning services, preventive care, snow removal, and the furnishing of security, lighting and any other utilities which may be incorporated as part of the Walkway. Repairs shall include ordinary or regular repairs together with any structural repairs which may become necessary. All utilities shall draw off a source originating at the Civic Center or a public utility or upon County property and shall be paid through Civic Center operations. Relative to its responsibility for the Plaza, the State may in the event of an emergency take independent action to repair, maintain or secure the Walkway, provided prior notification is given to the County, in writing, unless immediate action is required.
Section 11 of the walkway contract sets forth that the New York State Office of General Services shall be responsible for locking and unlocking the glass doors involved in this claim.

The defendant argues in support of dismissal that pursuant to the walkway agreement the County is solely responsible for the design and construction of the walkway and compliance with all applicable safety and construction statutes and regulations. Defense counsel states that since the defendant did not design, construct or install the doors connecting the walkway to the Empire State Plaza it has no responsibility in this Court for claimant's injuries. Claimant argues that she has established through papers submitted in relation to the cross-motion that the transparent glass doors which caused her injuries are situated within the east fieldstone wall of the Empire State Plaza at the vestibule area of the Concourse level of the Convention Center and that pursuant to the decision of the Third Department in Feisthamel the State of New York is responsible for placing proper warning markings upon all transparent glass doors located within the Plaza.

The Court is satisfied from its review of the photographs and documentary evidence contained in the motion and cross-motion record that the doors involved in this claim are located within the east fieldstone wall of the Plaza and as a consequence are a part of the Plaza. With respect to the marking of transparent glass doors, in 1967 the Legislature enacted section 241-b of the Labor Law (L. 1967, ch 501) which provides:
All transparent glass doors in mercantile establishments and in public and commercial buildings and structures shall be marked in such manner as shall be calculated to warn persons using the same that such doors are glass doors. The board shall make such rules as it may deem proper or necessary to carry into effect the provisions of this section.
The Industrial Board of Appeals of the Department of Labor enacted rules implementing Labor Law § 241-b through part 47 of Title 12 NYCRR. Section 47.6 thereof provides:
§ 47.6 Responsibility.

The owner or affected tenant or both of any building used as a mercantile establishment or a public or commercial building or structure shall be responsible for compliance with the provisions of this Part (rule).
Sections 47.7 and 47.8 of 12 NYCRR describe the required markings and the locations thereof. The issue of the State's liability upon a violation of section 241-b of the Labor Law and Industrial Code part 47 of 12 NYCRR came before the Third Department in Feisthamel, which involved an infant claimant who injured her left leg as she attempted to exit from the Concourse of the Empire State Plaza by way of a revolving glass door. The infant believed that she had reached the opening in the glass drum surrounding the revolving door when she attempted to walk out and instead struck a glass panel which blocked her way. A claim was brought on behalf of the infant and a derivative claim by her father based upon common law negligence and breach of the requirements of Labor Law § 241-b and 12 NYCRR 47.1 et seq. The State conceded that there were no warning markings of any kind upon the clear transparent glass panels in the revolving section of the door, nor in the glass drum that enclosed it. The trial court found that the State was negligent but that Labor Law § 241-b and its implementing rules did not apply. The trial court apportioned one-half of the fault for the incident to the infant and the remainder to the State. The judgment was affirmed by a three to two margin with the majority holding as follows:
While we agree that the record supports a finding of negligence on the part of the State, we disagree with the finding of the trial court that section 241-b of the Labor Law is inapplicable. That section became effective January 1, 1968 and provides: 'All transparent glass doors in mercantile establishments and in public and commercial buildings and structures shall be marked in such matter [sic] shall be calculated to warn persons using the same that such doors are glass doors. The board shall make such rules as it may deem proper or necessary to carry into effect the provisions of this section.' The purpose of rule 47, adopted under this statutory authority, is to require reasonable and proper markings and construction of transparent glass doors and fixed adjacent transparent glass sidelights to prevent personal injuries to persons frequenting any area or structure where such glass doors and sidelights are located (12 NYCRR 47.3). We conclude that both the statute and the rule should be construed expansively to include all transparent glass doors in both mercantile establishments and in public and commercial buildings and structures in general, and the glass drum surrounding the revolving glass doors herein, in particular. We, therefore, agree with so much of the dissent as concludes that the statute and the rule are applicable in these circumstances, but we decline to construe a violation thereof as imposing absolute liability.
The two dissenters issued a memorandum stating that not only did the statute and rule apply to impose liability on the State but that the liability should be absolute without any apportionment of fault. The majority determined that since the statute and rules were enacted to protect the general public, rather than a definite class of persons, a violation of the statute or rule constituted only some evidence of negligence permitting apportionment of fault.

The first issue for resolution is the res judicata or collateral estoppel effect to be accorded to the Feisthamel case. The doctrine of res judicata provides that once a lawsuit is determined by a final judgment all other causes of action arising out of the same transaction are barred even if pursued upon alternative legal theories (Ecker v Lerner, 123 AD2d 661). "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" Ryan v New York Tel. Co., 62 NY2d 494, 500). The two essential requirements of collateral estoppel are that the identical issue must have been decided in a prior action and be determinative in the present action and the party to be precluded must have had a full and fair opportunity to contest the prior determination (Matter of Juan C. v Cortines, 89 NY2d 659, 667). Identity of parties is not required (Kowalski v Mohsenin, 38 AD2d 274, 276), as even a stranger to prior litigation may take advantage of the preclusive effect of the prior decision (303 Realty Corp. v Albert, 154 AD2d 590).

Res judicata and collateral estoppel are inapplicable to this motion and cross-motion. First, because the Feisthamel litigation and this claim did not arise out of the same factual transaction. Secondly, the Court has examined the record on appeal and the issue currently before this Court was not addressed in Feisthamel. In Feisthamel, the issue was whether Labor Law § 241-b and its implementing regulations applied to a revolving glass door. The State did not raise the arguments presented here that it did not construct, maintain or control that revolving glass door. The Appellate Division never addressed those issues and it cannot be said that the State had a full and fair opportunity to present its current arguments. Consequently, the cross-motion premised upon res judicata and collateral estoppel must be denied.

The next issue is whether Feisthamel should determine the outcome in this claim based upon the principle of stare decisis. Stare decisis provides that when "a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same" (Moore v City of Albany, 98 NY 396 at 410). Once again, the critical inquiry is whether the facts in the first matter are essentially the same as those in the second. Here, they are not. In Feisthamel the State never contended that the involved doorway was constructed, controlled and maintained by an independent entity. In this claim, those factual contentions are clearly framed as it is clear that the County of Albany constructed the doorway and agreed to comply with all applicable safety regulations which would include those set forth in 12 NYCRR part 47. Moreover, the contract documents which have been placed before the Court raise issues of fact as to whether the State or the County of Albany had the duty to maintain the door with the requisite control thereof. Therefore, since the facts of this claim are significantly different than those determined in Feisthamel, the doctrine of stare decisis is not applicable.

The remaining issue is whether the duty imposed by the Legislature in section 241-b of the Labor Law is one which may be delegated. The Statute itself makes no mention of the party upon whom the duty is imposed while 12 NYCRR 47.6 places that responsibility upon "the owner or affected tenant or both". In Kleeman v Rheingold, 81 NY2d 270, 275, the Court of Appeals recognized the difficulty inherent in determining whether a duty is delegable when it stated:
There are no clearly defined criteria for identifying duties that are nondelegable. Indeed, whether a particular duty is properly categorized as 'nondelegable' necessarily entails a sui generis inquiry, since the conclusion ultimately rests on policy considerations.
In determining whether duties imposed by the Labor Law and Industrial Code regulations were delegable the Third Department has held that where the statute identifies the entity required to comply the duty is nondelegable and where the burden is imposed by regulation it may be delegated (Carpenter v Watkins Salt Co., 64 AD2d 330). Thus, sections 240 and 241 of the Labor Law containing specific language that the duties imposed by the statutes are upon "all contractors and owners" have been held to place nondelegable liability upon owners and contractors for violation of the statute (Negroni v East 67th Street Owners, 249 AD2d 79; Spiteri v Chatwal Hotels, 247 AD2d 297). In contrast, the language of Labor Law Section 241-b does not set forth the entity required to comply with the statutory mandate.

Any effort to construe the statute and implementing regulations must begin with an inquiry of the intention of the Legislature as discernment of legislative intent is always the primary objective of statutory construction. (Pardi v Barone, 257 AD2d 42; McKinney's Cons Laws of NY, Book 1, Statutes § 91). In this regard, the statute's Legislative history must be given due consideration (Home Off. Reference Lab. v Axelrod, 116 AD2d 858). This approach is consistent with the analysis employed by the Court of Appeals in Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, in which the Court looked first to the language of the statute and then to its legislative history in construing the duty imposed by Labor Law § 241(6) and specific regulations implemented thereunder to be nondelegable. Given the silence of Labor Law § 241-b relative to the matter at issue here the Court has reviewed the material contained in the bill jacket (Elkin v Cassarino, 248 AD2d 35) to chapter 501 and found no information which would indicate an intention to impose a nondelegable duty through enactment of the statute.

The Court is aware of the decision in Haskins v City of New York, 28 AD2d 656, in which the First Department held that section 241-a of the Labor Law (which requires that all workmen in or at elevator shaft ways, hatchways and stairwells be protected by sound planking without identifying the party that must comply with the statute) should be read in pari materia with Labor Law § 241 to impose a nondelegable duty. However, that holding was premised upon a determination that the purpose of sections 241-a and 241 were similar. Statutes are to be construed in pari materia only when they relate "to the same person or thing, or to the same class of persons or things" (McKinney's Cons Laws of NY, Book 1, Statutes § 221(a)). Upon a review of the statutory language and legislative histories this Court is unable to conclude that Labor Law § 241-b addresses the same subject matter and the same class of persons as Labor Law § § 240, 241 and 241-a and should be construed in pari materia with those sections so as to impose a nondelegable duty. The subject matter of Labor Law § § 240, 241 and 241-a is the protection of workers at construction sites. The class protected is workers (Lee v Jones, 230 AD2d 435; Shields v St. Marks Hous. Assocs., 230 AD2d 903). In contrast, section 241-b is not limited to construction sites but applies to all "mercantile establishments and in public and commercial buildings and structures". Furthermore, in Feisthamel, the Appellate Division specifically held that "the statute was not enacted for the protection of a definite class of persons from a hazzard which they themselves are incapable of avoiding ..., but rather for the protection of the general public". Since neither the subject matter nor class protected are similar there is no basis for construing section 241-b in pari materia with sections 240, 241 and 241-a upon the issue of whether the duty imposed by the statutes is delegable. That being so, since the duty sought to be imposed upon the State arises not from the terms of the statute but as a result of implementing regulations the Court is unable to find that the duty is nondelegable (Carpenter v Watkins Salt Co., 64 AD2d 330, supra, at 333).

Having determined that the State was free to delegate responsibility for marking the door to the County of Albany the issue becomes whether it did so. That question must be decided by a review of the contract documents and the actual practices of the State and County with respect to the door. Control will be the decisive factor. Upon this record, the Court is unable to determine as a matter of law whether there was a delegation of the statutory and regulatory duty to mark the door from the State to the County. In particular, section 4.09 of the South Mall Contract provides that the State shall be in sole possession of the South Mall and all public improvements thereon with the obligation to keep those improvements in good order and condition. In contrast, section 4 of the walkway contract obligates the County to maintain and repair the walkway but does permit the State in an emergency to take any necessary repair or maintenance steps. Section 11 of the walkway contract provides that the Office of General Services is responsible for locking and unlocking the glass doors. The Operations and Maintenance Plan for the Walkway (Exhibit C to the affirmation of Michael C. Magguilli dated April 10, 2000) states in paragraph 3.1 that "The Office of General Services (OGS) remains responsible for the operations and maintenance of all walkway areas inside of the Empire State Plaza." Arguably, the interior glass panel of the door that claimant struck is an area "inside of the Empire State Plaza" since the doorway is located within the east fieldstone wall of the Plaza. The foregoing factual issues preclude summary judgment.


July 17, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 28, 2000;
  2. Affirmation of Kathleen M. Resnick dated February 28, 2000, with exhibits;
  3. Affidavit of Robert Stapf sworn to February 25, 2000;
  4. Notice of cross-motion dated April 10, 2000;
  5. Affidavit of Rona Sherman sworn to April 10, 2000;
  6. Affirmation of Michael C. Magguilli dated April 10, 2000, with exhibits;
  7. Affirmation in opposition of Michael C. Magguilli dated April 4, 2000, with exhibits;
  8. Affidavit in opposition of Brendan F. Baynes sworn to May 17, 2000.