WARREN v. THE STATE OF NEW YORK, #2001-019-537, Claim No. 84086, Motion No.
State's motion for leave to reargue granted and partial summary judgment granted
in favor of the State on Labor Law 240 (1) and that portion of the Labor Law 241
(6) predicated on Industrial Code 23-1.7 (d).
ANDREW WARREN and ZENIA WARREN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GALLAGHER, GOSSEEN, FALLER & CROWLEYBY: Michael J. Crowley, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: JACOBOWITZ, GARFINKEL & LESMAN, David Persky, Esq., of counsel
July 3, 2001
See also (multicaptioned
The State of New York (hereinafter "State") moves for leave to reargue pursuant
to CPLR 2221 and, upon such reargument, for summary judgment dismissing
Claimants' Labor Law 240 (1) and 241 (6) causes of action. Claimants oppose the
The Court has considered the following papers in connection with this
Claim, filed October 17, 1991.
ORDER, Ct Cl., Nadel, J., Claim No. 84086, Motion Nos. M-55627 & CM-55910,
filed February 2, 1998.
DECISION, Ct Cl., Lebous, J., Claim No. 84086, filed January 29, 1999.
DECISION & ORDER, Appellate Division, 2nd Dept., (Warren v State of New
York, 274 AD2d 471, 472).
Notice of Motion No. M-63187, dated February 26, 2001 and filed March 12,
Affirmation of David Persky, Esq., in support of motion, dated February 26,
2001, with attached exhibits.
Affirmation of Michael J. Crowley, Esq., in opposition to motion, dated April
25, 2001, and filed April 27, 2001.
Reply Affirmation of David Persky, Esq., in support of motion, dated May 1,
2001, and filed May 3, 2001.
I. Procedural History
A review of the prior proceedings in this Claim is necessary in order to place
the pending motion into context. On October 24, 1990,
was a heavy equipment operator
working for Yonkers Construction Corp. on a State project. Claimant started to
climb down the ladder attached to and part of his backhoe when he slipped on
some grease that had dripped onto the ladder's top step and fell approximately 5
feet to the ground. Claimant suffered personal injuries including, most
significantly, a broken hip. Thereafter, Claimant commenced this lawsuit
charging the State with common law negligence and violations of Labor Law 200,
240 (1) and 241 (6). The State moved for summary judgment with respect to all
the causes of action and Claimant cross-moved for partial summary judgment on
the Labor Law 240 (1) cause of action. The Hon. S. Michael Nadel granted
Claimant's cross-motion for partial summary judgment on the Labor Law 240 (1)
cause of action and on the derivative cause of action, but denied the State's
motion in all respects. Judge Nadel found questions of fact warranting a trial
with respect to those portions of the summary judgment motions based upon the
Labor Law 200 and 241 (6). (Warren v State of New York
, Ct Cl., February
2, 1998, Nadel, J., Claim No. 84086, Motion No. M-55627, Cross-Motion No.
CM-55910). This Court held a trial on the issue of damages resulting in an
award in the amount of $671,393 for Claimant and $30,000 for Zenia Warren on the
derivative claim. (Warren v State of New York
, Ct Cl., January 29, 1999,
Lebous, J., Claim No. 84086).
In the interim, the State appealed Judge Nadel's Order to the Second
Department which affirmed in part, reversed in part and remanded the case for
trial. (Warren v State of New York, 274 AD2d 471). More specifically,
the Second Department reversed the finding of liability in favor of Claimant on
the Labor Law 240 (1) cause of action. Additionally, the Second Department
affirmed Judge Nadel's determination that questions of fact existed on the Labor
Law 200 and 241 (6) causes of action which necessitated denial of summary
judgment to both parties. The Second Department also affirmed this Court's
damages award. In sum, after motion and appellate practice the parties were
left where they started, preparing for a trial on the issue of liability on all
three stated Labor Law causes of action. No new trial date on the issue of
liability had been set when the State filed the instant motion.
By way of this motion, the State seeks permission to reargue its original
motion for summary judgment with respect to the Labor Law 240 (1) and 241 (6)
causes of action on the grounds that there has been a change in the
Initially, the Court notes that a motion
based upon a change in the law is properly described as a motion for leave to
renew rather than a motion to reargue and, as such, the Court will deem the
State's motion to reargue as a request for a motion for leave to
(CPLR 2221; Glicksman v Board of
Educ./Cent. School Bd. of Comsewogue Union Free School Dist.
, 278 AD2d 364).
The State contends that a motion to renew is proper relative to Labor Law 240
(1) based upon a change in law enunciated by the Court of Appeals in Bond v
York Hunter Constr
., 95 NY2d 883. As previously indicated, after motion
practice and subsequent appeals, this Claim is ready to proceed to trial on each
of the stated causes of action. Inasmuch as any change in law would be applied
at any future trial, Court will address the State's motion to renew on the
II. Motion for Summary Judgment
A. Labor Law 240 (1)
It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the
exceptionally dangerous conditions posed by elevation differentials at work
sites ... for workers laboring under unique gravity-related hazards
[citation omitted]." (Misseritti v. Mark IV Constr. Co., 86 NY2d 487,
491 [emphasis added]). Moreover, it is an accepted tenet that "[t]he
extraordinary protections of Labor Law § 240 (1) extend only to a narrow
class of special hazards, and do 'not encompass any and all perils that
may be connected in some tangential way with the effects of gravity' Ross v.
Curtis- Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original]".
(Nieves v. Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914,
Here, the State contends that the Court of Appeals decision of Bond v York
Hunter Constr., supra, 95 NY2d 883, declared that alighting from a
construction vehicle, the activity at issue here, is not the type of
gravity-related risk which Labor Law 240 (1) was intended to protect. As such,
the State asserts it is now entitled to summary judgment with respect to the
Labor Law 240 (1) cause of action. In Bond, a worker began to climb down
from a construction vehicle by placing his foot onto the vehicle's track using
it like a step when he slipped and fell on grease that had previously leaked
onto the track. The construction vehicle was not equipped with a step. The
Court of Appeals held that "[a]s a matter of law, the risk of alighting from the
construction vehicle was not an elevation-related risk which calls for any of
the protective devices of the types listed in Labor Law § 240 (1) [citation
omitted]". (Bond v York Hunter Constr., supra, 95 NY2d, at
884-885). Quite simply, the disposition of this motion turns on whether or not
the Bond decision is applicable to the case at bar.
Claimant attempts to distinguish Bond from the case at bar based upon
whether one of the enumerated devices specified in Labor Law 240 (1) was
available and in use. More specifically, Labor Law 240 (1) states, in part,
that all contractors and owners:
[s]hall furnish or erect, or cause to be furnished or erected for the
performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers,
blocks, pulleys, braces, irons, ropes, and other devices which shall be so
constructed, placed and operated as to give proper protection to a person so
Claimant points out that he was using one of the statute's enumerated devices, a
ladder, whereas none of the statute's enumerated devices were available to the
injured plaintiff in Bond. Claimant argues this distinction is critical
in light of an earlier Court of Appeals case, Covey v Iroquois Gas
Transmission Sys., 89 NY2d 952. In Covey, the Court of Appeals found
240 (1) liability when a worker used a ladder to climb off a construction
vehicle and fell into a trench fifteen feet below. Claimant argues that
Bond can only be reconciled with Covey if analyzed purely by the
presence or lack of an enumerated device since no enumerated device was used in
Bond, whereas an enumerated device (a ladder) was used in Covey as
in the case at bar. In sum, Claimant contends that Labor Law 240 (1) liability
is appropriate if an enumerated device is available and in use when a laborer is
ascending or descending a construction vehicle. To the contrary, the State
argues that Covey's disposition was based upon the fact the worker fell
into a fifteen-foot trench rather than to the ground, thereby making the
presence of an enumerated device irrelevant to the Court's disposition.
In this Court's view, Covey is distinguishable from Bond based
upon the plaintiff's fall into a trench and the finding in Covey does not
turn on the presence of an enumerated device. Clearly, in Bond, the
Court of Appeals viewed the activity of ascending or descending a construction
vehicle to be one of "[t]he usual and ordinary dangers of a construction site,
and not the extraordinary elevation risks envisioned by Labor Law § 240
(1)". (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843). As
such, this Court finds the risk of descending a construction vehicle is not an
elevated-related risk envisioned for protection under Labor Law 240 (1)
regardless of the presence on said vehicle of a ladder, step, or any other
enumerated device. (Bond v York Hunter Constr., supra, 95 NY2d,
at 884-885; Lessard v Niagara Mohawk Power Corp., 277 AD2d 941
[plaintiff's fall from the tracks of a construction vehicle was not an
elevation-related risk]). Consequently, the Court agrees with the State's
position that Bond v York Hunter Constr., supra, 95 NY2d 883,
warrants a finding of summary judgment in favor of the State on Claimant's
Labor Law 240 (1) cause of action.
B. Labor Law 241 (6)
The State also seeks summary judgment on Claimant's Labor Law 241 (6) cause of
action based upon Industrial Code 23-1.7 (d). Industrial Code 23-1.7 (d)
applies to slipping hazards and states:
[e]mployers shall not suffer or permit any employee to use a floor, passageway,
walkway, scaffold, platform or other elevated working surface which is in
a slippery condition. Ice, snow, water, grease and any other foreign substance
which may cause slippery footing shall be removed, sanded or covered to provide
The State contends that a ladder used to ascend or descend a construction
vehicle is not an "elevated working surface" within the purview of 12 NYCRR
23-1.7 (d). This Court agrees that the ladder, which is attached to and part of
a construction vehicle does not constitute an "elevated working surface" within
the meaning of 12 NYCRR 23-1.7 (d). (Lessard v Niagara Mohawk Power
, 277 AD2d, at 942 [tracks of a construction vehicle not
an elevated working surface]; see also
, Bond v York Hunter
, 270 AD2d 112, affd
95 NY2d 883, supra
). As such, the
State is entitled to summary judgment on Claimant's Labor Law 241 (6) cause of
action solely to the extent it is premised upon Industrial Code 23-1.7 (d).
However, the Court finds that Claimant has set forth numerous other Industrial
Code provisions as grounds for 241 (6) liability which neither party has
addressed in any substance on this motion, namely 23-1.5; 23- 1.7 (b) (2); 23-
1.7 (e) (2); 23- 1.21; 23- 1.31; 23- 5.3; 23- 9.2; 23-
(Claimants' Amended Bill of
Particulars). Accordingly, the Labor Law 241 (6) cause of action remains viable
for trial with respect to these provisions.
Finally, the Court notes that this motion was not directed to Claimant's Labor
Law 200 cause of action which the Second Department previously determined
contained questions of fact warranting a trial. In sum, in view of the
foregoing, a trial on the issue of liability is required on the remaining causes
of action, namely Labor Law 200 and 241 (6) to the limited extent indicated
hereinabove. The Court will schedule a conference call with counsel in order to
set a date certain for trial.
Accordingly, in light of the foregoing, it is ORDERED that the State's motion
for renewal is GRANTED and, upon such renewal, the State's motion for summary
judgment, Motion No. M-63187, is GRANTED and Claim No. 84086 is DISMISSED IN
PART in accordance with the foregoing.
July 3, 2001
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
"Claimant" will refer solely to Andrew Warren
inasmuch as the claim of Zenia Warren is derivative in nature.
The original motion for summary judgement was
previously decided by Judge Nadel, but the pending motion to reargue was
transferred to this Court.
The State's Notice of Motion describes the
motion as one for reargument while the attached affirmation describes it as a
motion to renew.
The State's only reference to these remaining
provisions is counsel's statement that "[s]ince there is no applicable
Industrial Code section on which Claimants' § 241(6) claim is based, it
must be dismissed". (Affirmation of David Persky, AAG, ¶ 13). Moreover,
this Court does not read Judge Nadel's decision to exclude the viability of
these other listed provisions.