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
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.
, 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
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
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.
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
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
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.