New York State Court of Claims

New York State Court of Claims

WAY v. THE STATE OF NEW YORK, #2001-019-514, Claim No. 97106, Motion Nos. M-62426, CM-62677


State's Motion for Summary Judgment seeking dismissal of claim based upon Labor Law 200 and 241 (6) is granted. Claimant's Cross-Motion for permission to amend Verified Bill of Particulars denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
ROBERT E. LAHM AND ASSOCIATESBY: Matthew E. Whritenour, Esq., of counsel
Defendant's attorney:
BY: Phelan, Burke & Scolamiero, LLP Keith M. Frary, Esq., of counsel
Third-party defendant's attorney:

Signature date:
March 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212 on the grounds that there is no evidence to support the stated causes of action under either Labor Law 200 or 241 (6). Claimant opposes the motion and cross-moves for an order granting permission to supplement his Verified Bill of Particulars.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 6, 1997.
  2. Notice of Motion No. M-62426, dated September 25, 2000, and filed September 27, 2000.
  3. Affidavit of Keith M. Frary, Esq., in support of motion, sworn to September 25, 2000, with attached exhibits.
  4. Memorandum of Law, in support of motion, dated September 25, 2000.
  5. Notice of Cross Motion No. CM-62677, undated, filed November 8, 2000.
  6. Affidavit of Matthew E. Whritenour, Esq., in support of cross-motion and in opposition to motion, sworn to November 7, 2000, with attached exhibits.
  7. Reply Affidavit of Keith M. Frary, Esq., in support of Motion No. M-62426 and in opposition to Motion No. CM-62677, sworn to November 13, 2000, and filed November 15, 2000.
This Claim arose from a sequence of events occurring on July 9, 1997, at approximately 9:00 a.m., at a State construction project located on State Route 14 in Reading, New York. Route 14 is a two lane highway running in a north-south direction. The State, as owner of the site, had entered into a contract with Chemung Contracting Corporation, the general contractor and Claimant's employer (hereinafter "Chemung"), to repair, among other things, culverts which ran underneath Route 14. A portion of this project required placing extensions on pipes crossing underneath the road by removing head walls and pouring concrete collars around the existing pipe and attaching extensions thereto. On the day of this accident, Chemung planned to pour the concrete collars for the drainage pipe extensions at approximately five locations along the road. However, due to the previous night's rainfall, water had accumulated in some of the forms which would have impacted the integrity of the concrete if it were poured without first removing the water. One particular site, drainage site #9, had to be drained using a gasoline powered drainage hose prior to pouring the concrete, because of its topography and location on the west side of the road. Traffic on Route 14 was not stopped or detoured during the project since the work was taking place approximately 12 feet off the road on the extreme edge of the shoulder.

It is undisputed that a Chemung employee, Johnny Watkins, placed the drainage hose across Route 14. Claimant, who was standing on the opposite shoulder of the road from Mr. Watkins, immediately recognized the danger and started to pull the hose off the road from his location on the shoulder. Wesley Corby, another Chemung employee, started to assist Claimant but, upon seeing a tractor-trailer traveling towards the outstretched hose in the road, yelled out for them both to run. The tractor-trailer ran over the hose causing it to fly in the air. Both Claimant and Mr. Corby were hit by the hose. The tractor-trailer was owned by H.E.P. Materials Corporation (hereinafter "HEP") and operated by its employee, George Grantling. Claimant, Donald Way, sued the State alleging both Labor Law 200 and 241 (6) causes of action. By way of this motion, the State moves for summary judgment on both causes of action, while Claimant cross-moves for an order granting permission to supplement his Verified Bill of Particulars.

I. Claimant's Cross-Motion to Amend Verified Bill of Particulars

The Court will first address Claimant's cross-motion seeking permission to supplement his Verified Bill of Particulars to add two additional provisions from 12 NYCRR Part 23 (hereinafter "Industrial Code") in support of his Labor Law 241 (6) cause of action, namely provisions 23-1.29 and 23-1.33 (f). Claimant offers nothing in support of this motion other than the statement that "[t]here are no new factual allegations associated with this request and no prejudice to the State." (Affidavit of Matthew E. Whritenour, Esq., ¶ 13). The State opposes the cross-motion on both procedural and substantive grounds. The Court finds the State's procedural objections dispositive. CPLR 3042 (b) states that "[a] party may amend the bill of particulars once as of course prior to the filing of a note of issue." (Emphasis added). Thereafter, a party must seek leave of court. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book, CPLR C3042:14, 2001 Supp Pamph, at 115). Here, this Claim was filed on October 6, 1997, more than 3 years ago, and the Note of Issue/Certificate of Readiness was filed on May 30, 2000, nearly 4 months prior to the filing of this motion. However, Claimant fails to offer any factual support or justification warranting the addition or explaining the applicability of the proposed additions on these facts at this late date. (Brugnano v Merrill Lynch & Co., 216 AD2d 18, lv denied 86 NY2d 880). Consequently, Claimant's cross-motion is denied.

II. State's Motion for Summary Judgment

The State seeks summary judgment on both stated Labor Law causes of action. On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). The Court must accept Claimant's evidence as true and grant him every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047). Once the moving party has established its burden, the burden shifts to "[t]he party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

In support of this motion, the State has submitted and referenced particular portions of deposition transcripts from Claimant, State Department of Transportation employees and Chemung employees.[1] While Claimant's papers in opposition refer in general terms to these same depositions, they do not contain any specific references thereto. (See Affidavit of Matthew E. Whritenour, Esq., ¶ 11). In short, Claimant's opposition papers do not set forth in any detail any facts or legal principles, but rather merely state in conclusory fashion that "Claimant respectfully submits that issues of fact exist concerning the Labor Law and Negligence causes of action, requiring that the State's motion for summary judgment be dismissed." (Affidavit of Matthew E. Whritenour, Esq., ¶ 12). Despite the obvious shortcomings of such a response, if the proponent fails to meet its own burden on a motion for summary judgment, the motion should be denied regardless of the sufficiency of the opposing papers. (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Accordingly, the Court will review whether the State has met its burden.

A. State's Motion for Summary Judgment: Labor Law 241 (6)

Turning to the State's motion relative to the Labor Law 241 (6) cause of action, it is well-settled that Labor Law 241 (6) imposes a nondelegable duty on an owner of property to comply with concrete specifications set forth in the Industrial Code. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In order to make out a prima facie cause of action under Labor Law section 241 (6), a claimant must allege that the State violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct, as opposed to a general reiteration of common law principles. (Ross v Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 504-505). Violation of the safety regulation must also be shown to be a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959). The Court will review each of the Industrial Code provisions pled by Claimant in his original Verified Bill of Particulars and now the subject of the State's motion for summary judgment.[2]

a). 12 NYCRR 23-1.5

The State correctly asserts that Courts have consistently found that 12 NYCRR 23-1.5 entitled "General responsibility of employers" does not set forth a specific standard of conduct sufficient to support a cause of action pursuant to Labor Law 241 (6). (Stairs v State St. Assocs., 206 AD2d 817, 818). Claimant offers nothing to contradict such a conclusion. Consequently, Industrial Code 23-1.5 cannot support a cause of action under Labor Law 241 (6).

b). 12 NYCRR 23-1.7 (e) (2)

Initially, the Court notes that Claimant misidentifies 23-1.7 (d) (2) as the provision relating to "Protection from general hazards, working areas". (Claimant's Verified Bill of Particulars, ¶ 20; emphasis added). The correct provision that actually refers to "working areas" is 23-1.7 (e) (2) which states "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materals [sic] and from sharp projections insofar as may be consistent with the work being performed." The State contends this provision is inapplicable to the facts of this case because this accident occurred on the open shoulder area next to Route 14 which is not a confined floor, passageway, walkway, scaffold, platform or similar working area as envisioned by this section. Case law supports this conclusion. (Lawyer v Hoffman, 275 AD2d 541; Rose v A. Servidone, Inc., 268 AD2d 516). The State has met its burden on this issue and Claimant has failed to come forward with admissible proof to the contrary.

c). 12 NYCRR 23-1.10 (b) (2)

Claimant cites Industrial Code 23-1.10 (d) as the provision pertaining to "hand tools, electric and hose lines". Rather, the correct provision relating to electric and hose lines is Industrial Code 23-1.10 (b) (2). Industrial Code 23-1.10 pertains generally to "hand tools" and is divided into two sections, namely "unpowered hand tools" and "electrical and pneumatic hand tools". This latter section is further split into three subdivisions entitled "power shut-off requirements", "electric and hose lines", and "grounding of electrical tools". As such, this "electric and hose lines" subdivision must necessarily relate to a hand tool that is either "electrical" nor "pneumatic" powered. Here, it is undisputed that the hose involved was a gasoline powered water pump hose. The State contends that this gasoline powered pump is neither electrical or pneumatic powered or even a hand tool. Claimant fails to come forward with any evidentiary proof in admissible form that this water pump hose relates to the general type of "hand tool" envisioned under Industrial Code 23-1.10 or, more specifically, an "electrical and pneumatic hand tool". Consequently, Industrial Code 23-1.10 does not support a cause of action under Labor Law 241 (6) on these facts.

d). 12 NYCRR 23-1.32

Industrial Code 23-1.32 requires an owner, among others, to either eliminate a danger or post warning signs forbidding unauthorized entry as soon as the owner is provided written notice thereof.[3](Emphasis added). The State asserts that 23-1.32 is inapplicable because noncompliance with a provision of the Industrial Code has not been established nor is there any allegation of written notice of such a violation. Claimant has failed to come forward with any evidentiary proof establishing either the noncompliance with a provision of this Part or that the State was provided with written notice of a dangerous condition which would trigger this provision. Consequently, this provision cannot support a cause of action under Labor Law 241 (6).

e). 12 NYCRR 23-1.33 (c) & (d)

Claimant also pleads a violation of Industrial Code 23-1.33 entitled "Protection of persons passing by construction, demolition or excavation operations" and, more specifically, subdivisions (c) and (d) which relate to "vehicular protection" and "maintenance", respectively. The State argues that Industrial Code 23-1.33 is a general provision insufficient to support a cause of action or, in the alternative, is applicable to persons other than construction workers. While the Third Department has expressed doubt as to whether this section is indeed general or specific (Lawyer v Hoffman, supra, 275 AD2d 541), other departments have found it to be general in nature (McMahon v Durst, 224 AD2d 324 [1st Dept.]; Hill v Corning Inc., 237 AD2d 881 [4th Dept.], lv denied 90 NY2d 884). In any event, the Third Department has recently stated in unequivocal fashion that "12 NYCRR 23-1.33 applies to persons passing by construction operations and not to workers, such as [claimant], on a construction site." (Lawyer v Hoffman, supra, 275 AD2d, at 542). As such, Claimant, a construction worker, may not rely on 12 NYCRR 23-1.33 to support a Labor Law 241 (6) cause of action.

In sum, the State's motion for summary judgment is granted with respect to Labor Law 241 (6) and Industrial Code provisions 23-1.5; 23-1.7 (e) (2); 23-1.10 (b) (2); 23-1.32 and 23-1.33 (c) & (d).

II. State's Motion for Summary Judgment: Labor Law 200

The State also moves for summary judgment with respect to Claimant's cause of action based upon Labor Law 200. On a Labor Law 200 cause of action, Claimant must be able to establish that the owner exercised some degree of supervision or control over the work site and that the owner had actual or constructive notice of the dangerous condition. (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299; Monroe v Bardin, 249 AD2d 650, 652). The State, while not conceding the issue of supervision or control, bases its motion upon the State's lack of actual or constructive notice of the unsafe condition.

In support of its position that there is no question of fact regarding the State's lack of actual or constructive notice of this unsafe condition, the State points to the deposition testimony of Mr. Sleve that "[t]he first indication that [he] had that the hose was in the roadway was after the accident had occurred and the truck had struck the hose." (Exhibit J to Affidavit of Keith M. Frary, Esq., p 56). In this Court's view, this proof is sufficient to satisfy the State's burden that it lacked actual or constructive notice of this unsafe condition. As such, the burden shifted to Claimant to establish that there is a question of fact relative to the State's actual or constructive notice of the unsafe condition. Despite this burden to come forward and lay bare his proof (Siegel, NY Prac § 281, at p 442 [3rd ed]), Claimant's opposing papers only state in conclusory fashion that issues of fact exist. (Affidavit of Matthew E. Whritenour, Esq., ¶ 12; see also, Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539 [facts raised in the moving papers which the opposing party does not controvert may be deemed admitted]). Notwithstanding, the Court has searched this record as it must on a motion for summary judgment, and finds no other proof to the contrary. Accordingly, the State's motion for summary judgment with respect to Labor Law 200 is granted.

Accordingly, for the reasons stated above, it is ORDERED that the State's Motion for Summary Judgment, Motion No. M-62426, is GRANTED and Claim No. 97106 is DISMISSED. Claimant's Cross-Motion No. CM-62677 is DENIED.

March 13, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The deposition transcripts submitted include: Wesley Corby-Chemung laborer; Byron Metcalf-Chemung superintendent; James H. Allison-State Engineer-in-Charge; Brian Kjar-State inspector; and Jeremy Sleve-State inspector.
[2]Claimant pled the specific provisions of the Industrial Code in his Verified Bill of Particulars, rather than his Claim. (Claimant's Verified Bill of Particulars, ¶ 20).

[3]12 NYCRR 23-1.32 states as follows:

[w]here nonncompliance with a provision of this Part (rule) causes or tends to cause imminent danger to a person employed in and written notice thereof is given by the commissioner to the appropriate employer, owner, contractor or his agent, such person shall either (a) at once effect compliance sufficiently to end the danger, or (b)...forthwith post the dangerous areas or tag the dangerous device or material with suitable posters or signs warning of the danger and forbidding unauthorized entry into the area or unauthorized use of the device or material, and shall maintain such posters or signs until the danger has been ended. While such noncompliance exists no employer shall suffer or permit any person employed by him to enter or be within an to which he has received such a notice of imminent danger...."