New York State Court of Claims

New York State Court of Claims

HEIDELMARK v. THE STATE OF NEW YORK, #2002-001-066, Claim No. 102024, Motion Nos. M-65192, CM-65297


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:
The Spada Law FirmBy: Eugene R. Spada, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.William J. Greagan, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant's motion for summary judgment and on claimant's cross motion for summary judgment pursuant to CPLR 3212: Notice of Motion, dated May 13 and filed May 14, 2002; Affidavit of William J. Greagan, Esq., sworn to May 13 and filed May 14, 2002, with annexed Exhibits A-F; Defendant's Memorandum of Law, received May 14, 2002; Notice of Cross Motion, dated May 31 and filed June 3, 2002; Affirmation in Opposition of Eugene R. Spada, Esq., dated May 30 and filed June 3, 2002, with annexed Exhibits A-F; Affidavit of Irving Paris, sworn to May 31 and filed June 3, 2002; Claimant's Memorandum of Law, received June 3, 2002; Reply Affidavit of William J. Greagan, Esq., sworn to June 11 and filed June 12, 2002; the claim, dated February 26 and filed February 29, 2000; and Response to Demand for Bill of Particulars, dated October 27 and filed November 9, 2000.

Claimant Frederick E. Heidelmark ("claimant") was a laborer employed by Pike Construction Company ("Pike"), a company contracting with defendant State of New York ("defendant" or "the State") to perform concrete work at the Empire State Plaza. The concrete project involved hydro-demolition of existing concrete, which necessitated the installation of a drain pipe to carry away the debris-laden water produced during this process. While dismantling this drain pipe, claimant sustained the injuries that prompted this claim against the State pursuant to Labor Law §§ 240 (1), 241 (6) and 200 (1) (Affidavit of William J. Greagan, Esq., sworn to May 13 and filed May 14, 2002, with annexed Exhibits A-F ["Greagan Aff."], Exh. F, pp 11, 29, Exh. C [Claimant's Bill of Particulars], ¶ 24; Affirmation in Opposition of Eugene R. Spada, Esq., dated May 30 and filed June 3, 2002, with annexed Exhibits A-F ["Spada Aff."], ¶ 2; Affidavit of Irving Paris, sworn to May 31 and filed June 3, 2002 ["Paris Aff."], ¶ 6; claim, dated February 26 and filed February 29, 2000 ["claim"]).

I. Factual Setting

On December 16, 1998, claimant and William Smith ("Smith"), a co-worker, were instructed by a Pike foreman to remove the PVC drainage pipe that was located in a "pipe chase" in the P-1 level of the Empire State Plaza's parking garage (Spada Aff., Exh. B, 8-9).[1] Smith, whom the Pike foreman had originally instructed to remove the pipe alone but who determined that this was "too much for him," and claimant were provided a six-foot ladder and a light in order to perform the task (Spada Aff., Exh. C, at 5, 7-9; Exh. D, at 21-24; Exh. B, at 10). Evidently, an earlier effort to locate a taller ladder had proved unsuccessful (Spada Aff., Exh. D, 21-24).

The actual section of drain pipe being removed at the time of the mishap was constructed of heavy-gauge plastic that measured four to six inches in diameter by three feet in length (Spada Aff., Exh. B, at 9; Exh. C, at 31; Exh. D, at 25). The section of pipe was estimated to weigh approximately 150 pounds, primarily due to the concrete debris that remained inside it (Spada Aff., Exh. C, at 16; Exh. D, at 25).

Once inside the pipe chase, Smith ascended the ladder and stood upon the top rung in order to reach the wire that secured the pipe section to the approximately 12-foot high ceiling. The ladder was leaning against the wall of the pipe chase when Smith utilized a pair of wire clippers with his right hand to cut the wire strap and attempted to hold the pipe section with his left hand (Spada Aff., Exh. B, at 11; Exh. C, at 10-13, 23-24 ). At the time, claimant was standing at the base of the ladder securing it (Spada Aff., Exh. C, 15; Exh. D, at 24-25, 27). Because the pipe was too heavy for Smith to hold, the pipe section fell out of his left hand and landed on claimant, who was wearing a helmet (Spada Aff., Exh. C, at 13-16). The pipe struck claimant's neck and one of his fingers (Spada Aff., Exh. D, at 29), causing numerous injuries to, among other things, his back (Greagan Aff., Exh. C [Claimant's Bill of Particulars], ¶ 8).

II. Discussion

A. Defendant's motion and claimant's cross motion for summary judgment

After issue was joined and some discovery completed, the State moved for summary judgment to dismiss the claim, arguing that claimant's accident does not fit within the protective parameters of Labor Law § 240 (1) (Greagan Aff., ¶¶ 16-18, Defendant's Memorandum of Law, received May 14, 2002 ["Def. Mem."], at 3-5); that Labor Law § 241 (6) does not apply because the provisions of the Industrial Code cited by claimant (see, 12 NYCRR 23-1 et seq. [Protection in Construction, Demolition and Excavation Operations]) are either irrelevant or not viable (Greagan Aff., ¶¶ 19-28; Def. Mem., at 5-8); and that claimant has no cause of action pursuant to Labor Law § 200 (1) because the State did not exercise control over the contractor (Pike), its employees or the manner in which the work was to be performed (Greagan Aff., ¶¶ 29-36, Def. Mem., at 8-9).

Claimant opposed the State's motion and simultaneously cross-moved for summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) (Notice of Cross Motion, dated May 31 and filed June 3, 2002), arguing that the cases cited by defendant to support dismissal of his Labor Law § 240 (1) cause of action are inapposite; that the uncontested fact that claimant was required to help remove an elevated, 150-pound section of pipe without any of the proper safety devices enumerated in Labor Law § 240 (1) calls for summary judgment in his favor on the issue of liability (Spada Aff., ¶¶ 6-12; Claimant's Memorandum of Law, received June 3, 2002 ["Clmt. Mem."], Points I-III); and that his Labor Law § 241 (6) claim is viable because rules 23-1.7 (a), 23-1.19 and 23-3.3 (c) of the Industrial Code (12 NYCRR 23-1.7 [a]; 23-1.19; 23-3.3 [c]) establish distinct standards that were not observed in this case, thus serving as valid predicates for liability (Spada Aff., ¶ 9; Paris Aff., ¶¶ 8, 14; Clmt Mem., Point III). Claimant did not respond to the State's argument urging dismissal of his cause of action under Labor Law § 200 (1), which the Court addresses first.

Labor Law § 200 (1)

Labor Law § 200 is a codification of the common-law duty of landowners and contractors to provide a safe workplace (see, Lawyer v Rotterdam Ventures, 204 AD2d 878, lv dismissed 84 NY2d 864). "A precondition to [finding] this duty, however, is that [the party to be charged] has authority or control over the activity bringing about the injury" (Friot v Wal-Mart Stores, 240 AD2d 890, 892).

Here, the deposition testimony of Joseph Patrick Bianchi, a Division Foreman for Pike, establishes that the State engineer in charge did not give instructions on how the job was to be performed or on the manner or method of work; he only instructed as to the project's "end result," with the pipe's removal being a "non-inspection issue" (Spada Aff., Exh. B, at 23-27). In addition, the deposition testimony of Jason Schner, an Office of General Services ("OGS") employee, explains that OGS did not direct Pike or its employees on how to remove the pipe system or provide any equipment for Pike to utilize during the pipe's removal (Greagan Aff., Exh. F). This unrebutted evidence sufficiently establishes that the State did not exercise any supervisory control over the work leading to claimant's injury and, consequently, precludes claimant's recovery under Labor Law § 200 (1) (see, Fischer v State of New York, 291 AD2d 815).

C. Labor Law § 241 (6)

Labor Law § 241 mandates contractors and owners and their agents "when constructing or demolishing buildings or doing any excavating in connection therewith" (Labor Law § 241) to provide "reasonable and adequate protection and safety" to those employed in or lawfully frequenting "[a]ll areas in which construction, excavation or demolition work is being performed" (Labor Law § 241 [6]) by complying with specific rules and regulations promulgated by the Board of Standards and Appeals (later renamed the Industrial Board of Appeals), or, after 1984, the Commissioner of Labor of the State of New York (L. 1989, c. 520, § 13). This duty is nondelegable, and thus the injured party need not show that the owner or contractor exercised supervision and control over the work performed (Long v Forest-Fehlhaber, 55 NY2d 154), the injured party must at the outset establish that the owner or contractor violated a rule or regulation that sets forth a specific or concrete standard of conduct, as opposed to a general reiteration of common-law principles (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494). In this case, claimant contends that his injuries were caused by the State's violation of 12 NYCRR 23-1.7 (a) (Overhead hazards), 23-1.19 (Catch platforms) and 23-3.3 (c) (Inspection).

1. 12 NYCRR 23-1.7 (a) (Overhead hazards)

Section 23-1.7 (a) provides in relevant part at paragraph (1) as follows:
Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot
(emphasis supplied).

The purpose of the regulation, as can be gleaned from a plain reading of it, is "to protect workers who might be present in a work area subject to the general and unintended risk of falling objects" (see, Roberts v General Elec. Co., 282 AD2d 791, 794, revd on other grounds 97 NY2d 737). Here, where the task was to lower the very object that struck claimant, any short-term risk associated with lowering a single pipe would hardly necessitate the construction of the substantial plank protective cover contemplated by this rule (see, id.). In short, this provision is inapplicable to these facts.

2. 12 NYCRR 23-1.19 (Catch platforms)

Rule 23-1.19 pertains to "Catch platforms," which are defined in the regulations as "structure[s] fabricated and mounted on an exterior vertical wall of any building or other structure and designed to catch and hold falling objects or material from upper working levels" (12 NYCRR 23-1.4 [10]; [emphasis supplied]). By its own terms this rule applies to situations where there is work or destruction of exteriors of structures, not the dismantling of an interior drain pipe (see, e.g., 12 NYCRR 23-3.3 [m] [catch platform required for demolition of exterior mason wall or roof]).

3. 12 NYCRR 23-3.3 (c)

The continuing inspection requirement of Rule 23-3.3 (c) pertains to risks related to "weakened or deteriorated floors or walls or from loosened material" and requires shoring or bracing material to remedy the unique dangers that arise during hand demolition. This provision does not support claimant's Labor Law 241 (6) claim because there was no "demolition" as contemplated by this section of the Industrial Code taking place at claimant's work site. For section 23-3.3 (c) to apply, claimant's injury would have to have taken place while he was performing "work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment" (12 NYCRR 23-1.4 [16]; see, Quinlan v City of New York, 293 AD2d 262; Zuniga v Stam Realty, 169 Misc 2d 1004, 1010, affd 245 AD2d 561, lv denied 91 NY2d 813). Such was not the case here.

D. Labor Law § 240 (1)

Labor Law § 240, the "Scaffold Law," protects those workers facing unique, elevation-related hazards and those workers who are injured as a result of inadequate or missing safety equipment at elevated work sites. Section 240 (1) imposes upon the owner or contractor a nondelegable duty to insure that workers exposed to such risks are provided as safe a work environment as possible (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500), and provides in pertinent part that
[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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 employed.

As the enumerated safety equipment suggests, the statute "applies to both ‘falling worker' and ‘falling object' cases" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267).

Toward the end of worker safety, the statute is to be construed liberally, keeping in mind the purpose for which it was framed (see, Melber v 6333 Main St., 91 NY2d 759, 762; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). The reach of Labor Law § 240, however, is not unlimited. "Because [the statute] impose[s] absolute liability without regard to a worker's culpability, [the] language should not be strained to encompass accidents which the Legislature did not intend to include " (Perchinsky v State of New York, 232 AD2d 34, 37-38, lv dismissed, lv denied 91 NY2d 830 [citation omitted]; see, Allen v Hodorowski & DeSantis Bldg. Contrs., 220 AD2d 959, 960). In short, "the extraordinary protections" provided by Labor Law § 240 (1) lend themselves "only to a narrow class of dangers"--those related to the effects of gravity (Melber v 6333 Main St., supra, at 762).

With respect to falling object cases, such as this one, the fact that gravity played a part in an accident, standing alone, will not suffice. The statute's protection does not extend to perils on a work site that are only "‘connected in some tangential way with the effects of gravity'" (Nieves v Five Boro Air Cond. & Refrig. Corp., 93 NY2d 914, 915-916, quoting Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501). Rather, in order to fall within the ambit of Labor Law § 240 (1), a claimant "must show more than simply that an object fell causing injury to a worker. [He or she] must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assocs., supra, at 268[emphasis in original]).

Relying heavily on Narducci v Manhasset Bay Assocs. (supra), defendant contends that the deficiency claimed here--that neither two A-frame ladders nor a rolling scaffold was provided so that claimant and his co-worker could lower the pipe simultaneously (see, Spada Aff., ¶¶ 7-8, 12; Clmt. Mem., Point III)--is irrelevant in this instance since the specified missing safety devices pertain to protecting a worker from the danger of falling, which did not happen here (Greagan Aff., ¶¶ 17-18; Def. Mem., 3-5; Reply Affidavit of William J. Greagan, Esq., sworn to June 11 and filed June 12, 2002, ¶¶ 3-8). The State also argues that the pipe was not a material that was being hoisted or a load that needed securing, and that the risk of the pipe's falling out of the co-worker's hand was not an extraordinary, height-related risk but, rather, was a routine risk of construction work (Def. Mem., at 4).

In Narducci, the plaintiff was working on a ladder removing window frames while performing restoration work on a fire-damaged warehouse (id., at 265-266). The plaintiff was injured when a piece of glass from a window adjacent to the one he was working on fell, striking his arm. He did not fall from his ladder (id.). Of crucial significance was the fact that the window that fell was not being worked on at the time of the accident and, as such, could not be considered "a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell" (id., at 268). Thus, Labor Law § 240 (1) did not apply (id.). The plaintiff's argument that the accident could have been avoided if he had been provided a scissor jack was rejected because a scissor jack is designed to prevent a worker from falling, not to protect a worker from falling objects (id., at 269).

Unlike the situation in Narducci, the falling object here was not just peripherally related to the worker's task: its lowering and removal was their task and, as such, could be considered an item "that required securing for the purposes of the undertaking at the time it fell" (id., at 268). Nor is there any evidence that the drain pipe was to be dropped deliberately as was the case in Roberts v General Elec. Co. (97 NY2d 737), where asbestos was being dropped on purpose to an area cleared of workers (see, Roberts v General Elec. Co., 282 AD2d 791, 795 [Spain, J. concurring in part and dissenting in part]; see also, Corey v Gorick Constr. Co., 271 AD2d 911 [holding that worker who was struck by steel beam when he entered drop area where steel beams were purposefully being dropped so as to facilitate debris removal could not recover under Labor Law § 240 [1]). To the contrary, the only evidence in this regard was from a Pike foreman who stated that he envisioned the dismantling process to require two men utilizing two ladders so that each worker could handle opposite ends of the pipe (Spada Aff., Exh. B, at 13-14). Furthermore, no safety device whatsoever was supplied to these workers to protect them from the hazard of the drainage pipe's falling during the dismantling process such as, for instance, a stay, sling, hanger, or rope (Labor Law § 240 [1]) (Spada Aff., ¶ 12).

In summary, the undisputed facts demonstrate that (1) claimant was helping to dismantle a drain-pipe system located approximately 10 feet above his work level; (2) the pipe was heavy due to the demolition debris that remained inside it; (3) other than the ladder utilized by claimant's co-worker to reach the pipe, there were no safety devices provided or utilized to prevent the pipe from falling; and (4) the pipe fell, injuring claimant, because it was too heavy for claimant's co-worker to hold with his one available hand. In the Court's view, this set of facts comfortably falls within the purview of Labor Law § 240 (1)'s coverage (see, e.g., Rios v 474431 Assocs., 278 AD2d 399 [plaintiff working at ground level struck by piece of pipe cut by co-worker working above him entitled to summary judgment under Labor Law § 240]; Sniadecki v Westfield Cent. School Dist., 272 AD2d 955 [plaintiff struck by section of pipe that was inadequately secured, knocking him off his ladder, entitled to summary judgment under Labor Law § 240]; see also, Stang v Garbellano, 262 AD2d 853 [plaintiff entitled to summary judgment under Labor Law § 240 for injuries suffered when sign fell while being removed due to missing safety device]; Severino v Schuyler Meadows Club, 225 AD2d 954, 956 [plaintiff entitled to directed verdict on Labor Law § 240 claim where angle iron that was elevated above his head struck and injured his knee]). Thus, the State as the owner of the premises is liable under Labor Law § 240 (1) for the injuries sustained by claimant "even though the job was performed by an independent contractor over which it exercised no control" (Rocovich v Consolidated Edison Co., supra, at 513).

III. Conclusion

Based on the foregoing, the Court (1) grants the State's motion for summary judgment insofar as it seeks to dismiss claimant's causes of action under Labor Law §§ 200 and 241 (6), and accordingly denies claimant's cross motion for partial summary judgment on liability on its cause of action under Labor Law § 241 (6); and (2) denies the State's motion for summary judgment insofar as it seeks to dismiss claimant's cause of action under Labor Law § 240 (1), and grants claimant's cross motion for partial summary judgment on liability on its cause of action under Labor Law § 240 (1).

September 30, 2002
Albany, New York

Judge of the Court of Claims

[1]The term "pipe chase" was described as an area hidden from plain view where pipes and conduit are run . . . "like a crawl space, but bigger" (Spada Aff., Exh. B, 10). This particular pipe chase's dimensions were estimated as approximately six-feet wide and 12- to 14-feet high (id., at 9-11). The entrance to the pipe chase was six feet off the ground although it appears that once inside the pipe chase, it had its own "ground level" (id., at 11).