On October 24, 1990, Claimant
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"]).
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
, 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
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
, 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
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
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)];
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
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 ).
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
, 228 AD2d 570).
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
NY2d 812 [23-9.2 (c)]. The State argues the remaining subdivisions (d) through
(i) are factually inapplicable to the case at
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.