OLSEN v. THE STATE OF NEW YORK, #2001-019-549, Claim No. 101274, Motion No.
State's Motion for Summary Judgment seeking dismissal of claim based upon Labor
Law 200, 240 (1) and 241 (6) is granted in part and denied in part.
CLIFFORD L. OLSEN and CARMEN OLSEN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
EISENBERG, MARGOLIS, FRIEDMAN & MOSESBY: Steven B. Dorfman, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Levene, Gouldin & Thompson, LLP David F. McCarthy, Esq., of counsel
August 16, 2001
See also (multicaptioned
The State of New York (hereinafter "State") moves for summary judgment pursuant
to CPLR 3212 on the grounds there is no evidence to support the stated causes of
action under Labor Law 200, 240 (1), and 241 (6). Claimants oppose the
The Court has considered the following papers in connection with this
Claim filed October 21, 1999.
Amended Claim, filed November 29, 1999.
Verified Bill of Particulars, unfiled, dated July 19, 2000.
Notice of Motion No. M-63222, dated March 12, 2001, and filed March 14,
Affidavit of David F. McCarthy, Esq., sworn to March 12, 2001, with attached
Affidavit of Stanley Fuller, in support of motion, sworn to March 12,
Affirmation of Farouq Al-Khalidi, M.D., in support of motion, undated.
Memorandum of Law in support of motion, dated March 12, 2001.
Affirmation of Steven B. Dorfman, Esq., in opposition to motion, dated May 16,
2001, unfiled, received by the Court on May 21, 2001.
Supplemental Affidavit of David F. McCarthy, Esq., in support of motion, sworn
to May 23, 2001, and filed May 25, 2001, with attached exhibits.
Letter from David F. McCarthy, Esq. to Motion Unit Court of Claims, dated June
This Claim arose on August 27, 1998, at approximately 10:35 a.m., at a State
construction project located at Cooks Falls Bridge on Route 17 in Sullivan
County, New York. At the time of this incident Claimant, Clifford L.
was an employee of Economy Paving
Company, Inc. (hereinafter "Economy"), a contractor on the aforesaid project.
The Amended Claim states that Claimant "[w]as lawfully standing on a part of the
bridge, approximately 60-70 feet
ground, drilling holes in the aforesaid bridge when a drill bit broke causing
claimant to lose his balance and in attempting to prevent his falling, his right
arm entangled in the cord to the drill, due to the negligence, carelessness and
recklessness of the defendant herein." (Amended Claim, ¶ 5). A Notice of
Intention was served on November 19, 1998. The Amended Claim was filed on
November 29, 1999 and served on the State on November 22, 1999 alleging
violations of Labor Law 200, 240 (1) and 241 (6).
By way of this motion, the State moves for summary judgment on each of these
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). Once the moving party has established its burden, "[t]he burden
shifts to the 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). Moreover, the Court must
accept the non-moving party's evidence as true and grant him every favorable
inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d
I. State's Motion for Summary Judgment: Labor Law 200
Labor Law 200 is a codification of the common-law duty of an owner or
contractor to exercise reasonable care to provide workers with a safe place to
work. With respect to owners, such as the State here, if the alleged defect is
in the contractor's methods or operations, rather than the premises, an owner
who has not exercised any supervision or control over a contractor's methods or
operations cannot be held liable for defects arising therefrom. (Comes v New
York State Elec. & Gas Corp., 82 NY2d 876, 877). Here, the State
contends there is no question of fact regarding the State's lack of supervision
or control over the work site. The State submits an Affidavit from Stanley
Fuller, the State's Engineer in Charge of this project, stating, in pertinent
part, the following:
Economy Paving was provided with specifications regarding the work to be done
and safety precautions to be used. As Engineer In Charge part of my duties
would be to make sure that the contractor complied with the specifications,
including job safety specifications. We did not provide instructions to the
Economy Paving employees regarding how to do their work. We did not direct or
control the Economy Paving employees regarding the work they were doing.
(Affidavit of Stanley Fuller, ¶ 4).
In this Court's view, this proof is sufficient to satisfy the State's burden
that it lacked supervision or control over the work site. As such, the burden
shifts to Claimant to come forward and lay bare his proof on this issue.
(Siegel, NY Prac § 281, at p 442 [3rd ed]). Instead, Claimant's opposition
papers on this issue merely contain the argument that the State failed to submit
any admissible proof from a party with personal knowledge (despite the offering
from Mr. Fuller) and without offering any evidentiary proof in admissible form
itself to the contrary. (Affirmation of Steven B. Dorfman, Esq., ¶ 2). In
fact, Claimant's own deposition testimony confirms that State representatives
only instructed Economy employees, such as Claimant, on what to do, not
how to do it. (Exhibit A, p 32, to Affirmation of Steven B. Dorfman,
Esq.). Consequently, no showing has been made by Claimant that any State
representative supervised or controlled the manner in which the work was
performed. Accordingly, the State's motion for summary judgment with respect
to Labor Law 200 is granted.
II. State's Motion for Summary Judgment: Labor Law 240 (1)
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
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,
rearg. denied 87 NY2d 969). 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, 915- 916). It is also accepted that an injury caused by a twisting
or shifting motion, rather than a falling object or falling person, although
occurring at an elevated work surface does not fall within the protection of
Labor Law 240 (1). (Narducci v Manhasset Bay Assocs., 2001 WL 499257
[Court of Appeals]).
The State's position on this portion of the motion is that Labor Law 240 (1) is
inapplicable because the subject "[h]arm did not flow from the force of gravity
to an object or person. Harm flowed from the drill bit catching or breaking and
the drill twisting". (State's Memorandum of Law, p 4). The State submits an
Affirmation from Farouq Al-Khalidi, M.D., in which he opines "[w]ithin a
reasonable degree of medical certainty that the injury sustained by Mr. Olsen on
August 27, 1998, was caused by a supinating or twisting force exerting stress on
the right forearm. This was caused by the twisting of the drill Mr. Olsen was
using." (Affirmation from Farouq Al-Khalidi, M.D., ¶ 3). The State also
quotes various narratives in medical reports and related workers compensation
documents wherein Claimant described his injury as resulting from a twist rather
than a fall. In this Court's view, the State has met its initial burden of
establishing by evidentiary proof in admissible form that this accident occurred
due to a twist or shift rather than from a falling object or falling person by
submitting an affidavit from Dr. Al-Khalidi who had physically examined
Claimant. As such, it is Claimant's burden to come forward with evidentiary
proof in admissible form to establish the existence of a question of fact
relative to this issue.
In opposition, Claimant offers his own deposition testimony of how this
accident occurred. The Court has reviewed the transcript of Claimant's
deposition and finds the following descriptions pertinent to this motion:
A. abI was drilling, the bit broke, the next thing I knew I was falling, fear
of falling - - I'm falling, as I was falling off, I grabbed my safety harness
and subsequently was going down. My one leg hit the scaffolding and my other
arm was still holding onto the drill.
While I was operating the drill, the bit broke. The next thing I knew I was
falling off the pedestal, in [fear] of falling off, I grabbed for whatever I
A. abIt [the drill] disfunctioned [sic], it would not function properly. As I
was operating it, it broke and it wouldn't function properly. It jammed up and
threw me off the top of the pedestal.
A It just abruptly seized all of a sudden. And then like, I don't know, go,
stop, go. All of a sudden it happened in seconds, less than a second. It just
- - I felt boom and then I felt myself falling off, from fear of falling, my
hand was still holding onto the handle and I was still holding onto the
Q And the safety harness, where was that attached?
Q Had you attached it to the cross member?
Q How long was the line that went from the safety harness to –
A Whatever the standard - - they usually come standard.
Q So the drill seized or moved as you were using it?
A Well, it broke and lurched - -
A - - and subsequently threw me off.
Q Did you fall off the pedestal?
A I fell off the pedestal subsequently landing on one leg and trying to hold
myself up and still holding on to the drill.
A The scaffolding around five foot below.
Q What were you holding onto with your left hand?
A The line on the, the body harness.
A Right, the safety harness. I was trying to pull down on it.
Q You had the drill in your right hand?
A Yeah, I was just, you know, just grabbing.
Q At what point did the injury occur to your right arm, was it when the drill
A When I was falling off was when the injury occurred.
Q The drill lurched before you started falling off, didn't it?
A It's a matter of seconds.
A The drill lurched, I got entangled in the cord as I was falling off. I'm
pulling up on something, on this and that to save myself. I'm taking a second,
half a second explaining. That's the only thing, boom the bit brakes, I'm
falling back. I'm grabbing and my fear of falling made me grab anything and
everything to save myself.
Q The drill lurched before you started falling, isn't that correct?
A The drill lurched and pushed me. In other words, the drill lurched in
seconds, less than a tenth of a seconds, boom, boom, you're falling.
Q And your elbow was hurt when the drill lurched, right?
A My elbow was hurt, to the best of my ability, because of, because of that
because I was incased in the cord as I was reaching up. You're asking me to
explain how I define how I got hurt. I'm telling you it was a matter of seconds.
The bit broke. I was falling, I was reaching up to try to grab the cord. I was
trying to do that along with trying to hold onto the drill, subsequently I was
encased in the cord.
(Exhibit A, Affirmation of Steven B. Dorfman, Esq., pp 48-60).
Thus, the Court is presented with two versions of how this accident occurred,
one from Dr. Al-Khalidi and the other from Claimant himself. An acceptance of
either Dr. Al-Khalidi's opinion or Claimant's own version of events at this
stage would necessarily incorporate a determination as to the credibility of the
respective individuals. For instance, Dr. Al-Khalidi's conclusion that this
accident could not have occurred in the manner described by Claimant would
include an implicit finding that Claimant's version was not credible. It is
well-settled that a determination as to credibility is inappropriate on a motion
for summary judgment. (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338,
341). As such, this Court finds that a question of fact has been raised from
these quoted portions of Claimant's deposition testimony as to how this accident
occurred or, more specifically, whether Claimant was laboring under a unique
gravity-related hazard. (Levy v City of New York, 232 AD2d 160, 161
[issues of fact raised by testimony during deposition will operate to preclude
Additionally, it appears from this record that there was a scaffolding in place
with a safety harness in use. As such, the Third Department has stated that
"[e]xcept in the extreme case where no protective device is furnished [citations
omitted], whether 'proper protection' has been provided under Labor Law §
240 (1) is an issue of fact [citations omitted] precluding summary judgment."
(Blair v Rosen-Michaels, Inc
., 146 AD2d 863, 865; Walsh v Applied
Digital Data Sys.
, 190 AD2d 731). Furthermore, it is unclear from this
record whether or not guard rails were required pursuant to Labor Law 240 (2)
and, if so, whether or not they were present.
(Bland v Manocherian
, 66 NY2d 452).
Finally, the respective cases cited by the parties warrant discussion. The
State cites Kelleher v Power Auth. of State of N. Y., 211 AD2d 918, and
Toth v Cargill, 236 AD2d 707, in support of its contention that a twist
or shift is not covered by Labor Law 240 (1). Claimant cites Johnson v
General Design & Dev., 225 AD2d 970, as controlling the case at bar.
In this Court's view, the State's cases appear distinguishable from the case at
bar since neither Kelleher nor Toth involved a fall, whereas here
there is a question of fact as to whether Claimant fell and, if so, whether this
contributed to his injury. As such, based on this record, the State's
conclusion that "the claimed harm was not caused by the force of gravity" seems,
at best, premature. (State's Memorandum of Law, p 5). This is not to say,
however, that the proof at trial on this issue will support one theory or the
other, only that on this record there are questions of fact as indicated herein.
In sum, in this Court's view, questions of fact exist relative to how this
accident occurred; whether or not proper protection was provided under Labor Law
240 (1) by the scaffolding and safety harness; and whether or not guard rails
were required pursuant to Labor Law 240 (2) and, if so, whether or not they were
present; and whether or not Claimant fell and, if so, whether the fall in any
way contributed to his injury.
III. State's Motion for Summary Judgment: Labor Law 241 (6)
It is well-settled that Labor Law 241 (6) imposes a nondelegable duty on a
property owner to comply with a specific standard of conduct set forth in the
rules and regulations of the Commissioner of Labor (hereinafter "Industrial
Code") as opposed to a general reiteration of common law principles. (Ross v
Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 504-505).
Moreover, the violation of that specific standard must be shown to be a
proximate cause of the accident. (Ares v State of New York, 80 NY2d
959). Furthermore, as the proponent on this motion for summary judgment, the
State has the initial burden of establishing its entitlement to judgment as a
matter of law, failing which, this motion must be denied regardless of the
sufficiency of the opposing papers. (Winegrad v New York Univ. Med.
Center, 64 NY2d 851, 853).
Claimant alleges the State violated 15 separate provisions of the Industrial
Code as a basis for liability pursuant to Labor Law 241 (6), namely 12 NYCRR
23-1.5; 23-1.7; 23-1.10; 23-1.12; 23-1.15; 23-1.16; 23-1.17; 23-1.27; 23-1.32;
23-2.6; 23-3.2; 23-3.4; 23-5.1; 23-9.2; and 23-9.10. (Claimant's Verified Bill
of Particulars, ¶ 5). By way of this motion, the State contends that none
of these provisions are relevant considering the manner in which this accident
occurred. (State's Memorandum of Law, pp 6-8). Claimant's response is limited
to a discussion of only two of the fifteen originally cited provisions, namely
Industrial Code 23-1.15 (Safety railing) and 23-5.1 (General Provisions for all
scaffolds). Claimant argues there is a question of fact as to whether the use
of safety rails or a scaffold pursuant to the Industrial Code would have
prevented this accident. The Court agrees that there is a question of fact as
to the applicability of Industrial Code 23-1.15 and 23-5.1 to this case
particularly in light of this Court's determination in the Labor Law 240 (1)
cause of action that, among other things, a question of fact exists as to how
the accident occurred in the first instance. However, with respect to the
remaining provisions, the Court finds Claimant's failure to substantively rebut
the State's argument that said provisions do not apply on these facts to be a
concession on that point. Consequently, the State's motion for summary judgment
is granted in part with respect to Labor Law 241 (6) to the extent it is based
upon Industrial Code 12 NYCRR 23-1.5; 23-1.7; 23-1.10; 23-1.12; 23-1.16;
23-1.17; 23-1.27; 23-1.32; 23-2.6; 23-3.2; 23-3.4; 23-9.2; and 23-9.10 and
denied in part with respect to Industrial Code 12 NYCRR 23-1.15 and 23-5.1.
Accordingly, for the reasons stated above, it is ORDERED that the State's
Motion for Summary Judgment, Motion No. M-63222, is GRANTED IN PART relative to
Labor Law 200 and the portion of Labor Law 241 (6) based on 12 NYCRR 23-1.5;
23-1.7; 23-1.10; 23-1.12; 23-1.16; 23-1.17; 23-1.27; 23-1.32; 23-2.6; 23-3.2;
23-3.4; 23-9.2; and 23-9.10 as indicated hereinabove and DENIED IN PART relative
to Labor Law 240 (1) and the portion of Labor Law 241 (6) based upon 12 NYCRR
23-1.15 and 23-5.1 in accordance with the foregoing.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
Hereinafter, "Claimant" will refer solely to
Clifford L. Olsen inasmuch as the claim of Carmen Olsen is derivative in
Claimant revises this distance in later
discovery to approximately 20-25 feet. (Exhibit A, p 77 to Affirmation of
Steven B. Dorfman, Esq.).
Claimant's response in his deposition to how
far above the water he was working was "I would agree with Stan, to the best of
my knowledge within twenty feet, twenty five feet, about...." (Exhibit A, p.
77, to Affirmation of Steven Dorfman, Esq.), which distance would put this case
under Labor Law 240 (2). Labor Law 240 (2) states, in pertinent part, as
[s]caffolding or staging more than twenty feet from the ground or floor, swung
or suspended from an overhead support or erected with stationary
supports,...shall have a safety rail of suitable material properly attached,
bolted, braced or otherwise secured, rising at least thirty-four inches above
the floor or main portions of such scaffolding or staging and extending along
the entire length of the outside and the ends thereof, with only such openings
as may be necessary for the delivery of materials. Such scaffolding or staging
shall be so fastened as to prevent it from swaying from the building or