New York State Court of Claims

New York State Court of Claims

WARREN v. THE STATE OF NEW YORK, #2001-019-575, Claim No. 84086, Motion No. M-63924


State's motion for leave to reargue is granted and, upon reargument, motion for summary judgment relative to Labor Law 241 (6) is granted in part and denied in part.

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:
GALLAGHER, GOSSEEN, FALLER & CROWLEYBY: Michael J. Crowley, Esq., of counsel
Defendant's attorney:
BY: Jacobowitz, Garfinkel & Lesman David Persky, Esq., of counsel
Third-party defendant's attorney:

Signature date:
November 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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 241 (6) cause of action. Claimants oppose the motion.

The Court has considered the following papers in connection with this motion:
  1. ORDER, Nadel, J., Claim No. 84086, Motion Nos. M-55627 & CM-55910, filed February 2, 1998.
  2. DECISION, Lebous, J., Claim No. 84086, filed January 29, 1999.
  3. Warren v. State of New York, 274 AD2d 472.
  4. DECISION AND ORDER, Lebous, J., Claim No. 84086, Motion No. M-63187, filed July 16, 2001.
  5. Notice of Motion No. M-63924, dated August 13, 2001, and filed August 16, 2001.
  6. Affirmation of David Persky, Esq., in support of motion, dated August 13, 2001, with attached exhibits.
  7. Affirmation of Michael J. Crowley, Esq., in opposition to motion, dated August 31, 2001, and filed October 29, 2001.
On October 24, 1990, Claimant[1] was a heavy equipment operator working for Yonkers Construction Corp. on a State project. Claimant started to climb down the ladder/rungs of a backhoe when he slipped and fell approximately 5 feet to the ground. Claimant suffered personal injuries including, most significantly, a broken hip.

Initially, both parties cross-moved for summary judgment. The Court of Claims granted summary judgment to Claimant solely on the Labor Law 240 (1) cause of action, but denied summary judgment to both parties on the Labor Law 200 and 241 (6) causes of action. (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 [hereinafter "Decision #1"]). Pending appeal, a trial on the issue of damages was held with this Court awarding total damages in the amount of $701,393. (Warren v State of New York, Ct Cl., January 29, 1999, Lebous, J., Claim No. 84086 [hereinafter "Decision #2"]).[2] The Second Department ultimately reversed the grant of summary judgment to Claimant which left all three original causes of action viable for trial, although the prior judgment relative to damages was affirmed. (Warren v State of New York, 274 AD2d 472 [hereinafter sometimes "Decision #3"]). In said decision, the Second Department specifically stated that "[t]here are issues of fact as to whether this slip and fall was caused solely or partially by an accumulation of grease, or by one of several alleged defects in the backhoe itself"[3] also reiterating "[t]here is an issue of fact as to whether any defect in the backhoe contributed to the accident." (Warren v State of New York, supra, 274 AD2d, at 472 & 473; emphases added).

Thereafter, the State filed a motion to renew its summary judgment arguments relative to Labor Law 240 (1) and 241 (6) based upon a change in the law. This Court granted the State's summary judgment motion on Labor Law 240 (1) and Labor Law 241 (6) solely to the extent it was premised upon Industrial Code 23-1.7 (d), but denied the motion relative to numerous other Industrial Code provisions. (Warren v State of New York, supra, Ct Cl, July 16, 2001, Lebous, J., Claim No. 84086, Motion No. M-63187 [hereinafter "Decision #4"]). Thus, at the time of the instant motion, only Labor Law 200 and a portion of Labor Law 241 (6) remained for trial. By way of this current motion, the State now seeks to reargue the denial of its motion for summary judgment solely with respect to Labor Law 241 (6) based upon those remaining Industrial Code provisions. Claimant opposes this motion.

A motion for reargument is "[d]esigned to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" without raising any new proof. (Foley v Roche, 68 AD2d 558, 567; CPLR 2221 [d]). Claimant opposes this current motion arguing that the State has offered no excuse why the arguments made herein were not previously submitted in either of its two prior motions. On a motion for reargument CPLR 2221 (d) does not mandate that such an excuse be presented, although unnecessary and repetitive motions certainly will not be well-received.[4] The State now explains that it had interpreted Decision #1 to have summarily dismissed the feasibility of all the Industrial Code provisions pled by Claimant, with the exception of the one provision discussed by the Court. By way of background, Judge Nadel's original summary judgment decision stated that "[w]hile there may have been a §241 (6) violation, if defendant violated 12 NYCRR 23-1.7 (d) [quote omitted], claimant's deposition testimony, submitted by both defendant and claimant, suggests at least some culpability on his part in failing to observe the grease on the backhoe step." (Decision #1, p 4). On the subsequent reargument motion, this Court specifically noted that it did "[n]ot read Judge Nadel's decision to exclude the viability of these other listed provisions". (Decision #4, p 8, fn 4). The State indicates that it did not previously brief these issues because it had interpreted Judge Nadel's decision as dismissing any consideration of those additional Industrial Code provisions. The State submitted this motion for reargument after realizing that this Court did not interpret Judge Nadel's decision as dismissing those remaining Industrial Code provisions. Although not mandated to do so, the State has adequately addressed the need for this motion by explaining its limited treatment of Labor Law 241 (6) in the prior motion.

To make out a prima facie cause of action pursuant to Labor law 241 (6), a claimant must allege that the State violated a specific standard of conduct under the rules or regulations of the Commissioner of Labor as opposed to a reiteration of common-law principles. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). The State contends that many of the Industrial Code provisions pled by Claimant are general safety standards inadequate as a matter of law to support this cause of action. Claimant has chosen not to offer any substantive arguments in opposition.

Industrial Code 23-1.5
[General responsibility of employers]

The State argues that this entire provision sets forth a general safety standard and thus is insufficient to maintain a Labor Law 241 (6) cause of action. Claimant has offered nothing in opposition to this argument. The majority of the subdivisions under 23-1.5 have in fact been delineated as providing merely a general safety standard inadequate to support a Labor Law 241 (6) cause of action. (Williams v White Haven Mem. Park, 227 AD2d 923 [subdivision (a), (c) (2) & (c) (3)]; Hawkins v City of New York, 275 AD2d 634 [subdivision (a) & (c) (1)];[5] Vernieri v Empire Realty Co., 219 AD2d 593, 598 [subdivision (c) (2)]). The Court finds subdivision (b) general in nature as well. Consequently, Industrial Code 23-1.5, in its entirety, is insufficient to support a Labor Law 241 (6) cause of action and that portion of this Claim is dismissed.

Industrial Code 23-1.7
[Protection from general hazards]

Claimant pled two specific subdivisions from this section, namely 23-1.7 (b) (2) and 23-1.7 (e) (2). Industrial Code section 23-1.7 (b) (2) captioned "Falling hazards/Bridge or highway overpass construction" has been deemed as a specific safety regulation (Frank v Meadowlakes, 256 AD2d 1141), as has subdivision (e) (2) entitled "Tripping and other hazards/Working areas." (Clark v Town of Scriba, 280 AD2d 915). As such, both of these provisions are adequate to maintain a Labor law 241 (6) cause of action on this record.

Industrial Code 23-1.21
[Ladders and ladderways]

The State alleges that "[t]his section refers to defective ladders and not to the permanent steps from which claimant fell." (Affirmation of David Persky, ¶ 10; emphasis in original). This section sets out specific safety standards and is sufficient to support a Labor Law 241 (6) cause of action based upon the facts at hand.

Industrial Code 23-1.31
[Approval of materials and devices]

This provision merely indicates that "[a]pplication may be made to the board for the approval of any device, apparatus, material, equipment or method which may be used in compliance with the intent of this Part...." Claimant fails to come forward with any argument on how this section could be construed as setting forth a specific safety standard. As such, the Court dismisses the Labor Law 241 (6) cause of action based upon Industrial Code 23-1.31.

Industrial Code 23-5.3
[General provisions for metal scaffolds]

The State simply points out that no metal scaffolding was involved in this accident and, as such, this provision is inapplicable. Industrial Code 23-5.3 applies to "[a]ll scaffolds constructed of metal except mobile types." The term 'scaffold' is defined as "[a] temporary elevated working platform and its supporting structure including all components." (Industrial Code 23-1.4 [45]). Claimant has not offered any proof whatsoever on this motion that a metal scaffold was involved in this accident. Accordingly, the portion of this Claim alleging a violation of Labor Law 241 (6) relying upon a violation of Industrial Code 23-5.3 is dismissed.

Industrial Code 23-9.2
[Power-Operated Equipment/General Requirements]

The State contends that subdivisions (a), (b) and (c) are merely general safety standards; while subdivisions (d) through (h) are inapplicable to the facts at hand. Subdivision (a) has been described by the Second Department as consisting of a general safety standard legally incapable of supporting a Labor Law 241 (6) action. (Thompson v Ludovico, 246 AD2d 642; Phillips v City of New York, 228 AD2d 570).[6] Likewise, subdivisions (b) and (c) have also been deemed as setting forth only general safety standards. (Webber v City of Dunkirk, 226 AD2d 1050 [23-9.2 (b)]; Armer v General Elec. Co., 241 AD2d 581, 583, lv denied 90 NY2d 812 [23-9.2 (c)]. The State argues the remaining subdivisions (d) through (i) are factually inapplicable to the case at bar.[7] Claimant has not offered any proof that these remaining subdivisions are even tangentially related to the facts at hand. Consequently, Claimants' Labor Law 241 (6) cause of action premised on Industrial Code 23-9.2 is dismissed.

Industrial Code 23-9.4
[Power shovels and backhoes used for material handling]

The State alleges this provision is "[f]actually inapplicable because at the time claimant fell, the backhoe was not being 'used for material handling', or otherwise in operation, and was in fact parked." (Affirmation of David Persky, Esq., ¶ 14). With respect to the specificity of this provision, only subdivision (a) has been deemed general while the other subdivisions have been described as specific safety measures. (Brechue v Town of Wheatfield, 241 AD2d 935, lv denied 94 NY2d 759). Again, Claimant has failed to offer any proof that the remaining subdivisions relating to issues such as footing, hoisting and capacity have any relevance to the case at hand. Accordingly, the Court will dismiss the Labor Law 241 (6) cause of action premised upon Industrial Code 23-9.4.

In sum, the State's motion for summary judgment on Labor Law 241 (6) is granted with respect to Industrial Code 23-1.5; 23-1.31; 23-5.3; 23-9.2; and 23-9.4, but denied as to Industrial Code 23-1.7 and 23-1.21. Parenthetically, the Court notes that Claimant's Labor Law 200 cause of action remains as well.

To the extent that Claimant sought costs and fees on this motion, such request is denied inasmuch as costs are not properly awarded in the Court of Claims. (Court of Claims Act 27).

Accordingly, in light of the foregoing, it is ORDERED that the State's motion for reargument is GRANTED and, upon such reargument, the State's motion for summary judgment, Motion No. M-63924, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. The Court will contact counsel in order to schedule a conference call for the purposes of scheduling a trial.

November 26, 2001
Binghamton, New York

Judge of the Court of Claims

[1]"Claimant" will refer solely to Andrew Warren inasmuch as the claim of Zenia Warren is derivative in nature.
[2]Recent decisions from the Court of Claims are available via the Internet at
[3]The record reflects that there were issues raised concerning, among other things, the depth of each rung and whether the rung edges were worn down.
[4]The requirement to which Claimant refers relates to a motion to renew which is understandable in that context since new facts are being introduced. (CPLR 2221 [e] [3]).
[5]But see, Gonzalez v United Parcel Serv., 249 AD2d 210 and McCormack v Helmsley-Spear, Inc., 233 AD2d 203.
[6]Fourth Department decisions to the contrary are unpersuasive. (Tillman v Triou's Custom Homes, 253 AD2d 254, 258).
[7]The remaining subdivisions address the following issues: (d) Protection of moving parts; (e) Refueling; (f) Engine exhaust; (g) Equipment at rest; (h) Roll-over protection required; and (i) Riding.