New York State Court of Claims

New York State Court of Claims

SWIFT v. THE STATE OF NEW YORK, #2002-010-010, Claim No. 99380, Motion Nos. M-63430, CM-63797


Claimants' motion for summary judgment and defendant's cross-motion for summary judgment are denied.

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):
Terry Jane Ruderman
Claimant's attorney:
ERIC H. GREEN, ESQ.By: Elliot B. Pasik, Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: Gary A. Cusano, Esq.
Third-party defendant's attorney:

Signature date:
February 28, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on claimants' motion for summary judgment and defendant's cross-motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation, Claimants' Memorandum of Law, Supporting Affidavit of Kevin Swift and Exhibits..........................................1

Notice of Cross-Motion, Supporting Affirmation, Memorandum of Law................2

Opposition/Reply Affirmation and Exhibits............................................................3

Reply Affirmation......................................................................................................4

Claim No. 99380 alleges that on March 31, 1998, Kevin Swift[1] (hereinafter claimant) was injured at a State owned construction site. Claimants allege that defendant is liable based on a negligence theory and the violation of Labor Law §§ 200; 240(1); 241(6). Claimants move for summary judgment on the Labor Law §240(1) claim and defendant cross-moves for summary judgment on the remaining claims.
Claimants' Summary Judgment Motion
The following facts are undisputed. Claimant was employed by Worth Construction as a brick layer to construct a medical building at the Bedford Hills Correctional Facility, which is owned and operated by defendant (Claimant's Ex. D). Claimant was standing on a scaffold, at a height of approximately six feet, and installing flashing paper on the first floor, when an ascending material/personnel hoist struck one end of the roll of flashing paper (Claimant's Ex. E). As a result, the roll crushed claimant's right hand against a vertical angle iron. He sustained a fractured thumb, requiring surgery and physical therapy. Claimant submits photographs of the hoist and building under construction (Claimant's Ex. E), claimant's affidavit, and the EBT transcript of State engineer Jonathan Morgan (Claimant's Ex. F). Claimant contends that the hoist should have been shut down while he installed the flashing paper or the hoist should have been equipped with either an alarm to warn workers of its proximity to them, or a wall around the shaft of the hoist to prevent the roll from entering the shaft airspace.

Labor Law §240 Scaffolding and other devices for use of employees provides in pertinent part:
1. All contractors and owners * * * in the erection *** of a building *** 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.

Section 240(1) has been interpreted to impose absolute liability for a breach which has proximately caused an injury (see, Rocovich v Consolidated Edison Co., 78 NY2d 509; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521). The duty imposed by §240(1) is nondelegable and an owner is liable for a violation of the section even where the job was performed by an independent contractor over which the owner exercised no supervision or control (see, Haimes v New York Tel. Co., 46 NY2d 132). Negligence, if any, of the injured worker is of no consequence (see, Zimmer v Chemung County Performing Arts, supra). Labor Law §240(1) was intended to apply in cases where there are "risks related to elevation differentials" because of the special hazards in having to perform work under such conditions (Rocovich v Consolidated Edison Co., supra at 514). In Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501, the Court of Appeals further stated:
[t]he "special hazards" to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the "special hazards" referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350). In other words, Labor Law §240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

In Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491, the Court of Appeals noted 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 [citations omitted]."

The Court of Appeals further explained in Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-68, that Labor Law §240(1) applies to "falling worker" and "falling object" cases. However, for §240(1) to be applicable:
a plaintiff must show more than simply that an object fell causing injury to a worker. *** In addition, the fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a "falling object" case, because a different type of hazard is involved. Working at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above. The hazard posed by working at an elevation is that, in the absence of adequate safety devices (e.g., scaffolds, ladders), a worker might be injured in a fall. By contrast, falling objects are associated with the failure to use a different type of safety device (e.g., ropes, pulleys, irons) also enumerated in the statute (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, 81 NY2d, at 501). Because the different risks arise from different construction practices, the hazard from one type of activity cannot be "transferred" to create liability for a different type of accident [emphasis added]

(Narducci v Manhasset Bay Assoc., supra at 268).

In Narducci, a worker was standing on a ladder while removing a window frame, when the glass from an adjacent window began to fall. The worker turned to protect his face, but was severely cut on his arm. The Court noted that the worker did not fall from the ladder, nor did the ladder malfunction in any way. The Court of Appeals found that Labor Law §240(1) was not applicable because the glass that fell was not a material being hoisted or a load requiring securing; nor was it a situation where a hoisting or securing device would have been expected. The Court of Appeals stated:
[a]bsolute liability for falling objects under Labor Law §240(1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law §240(1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law §240(1) (see, Misseritti v Mark IV Constr. Co., 86 NY2d 487). Nor does the fact that plaintiff was working at an elevation bring this scenario within the ambit of Labor Law §240(1). Plaintiff does not contest that the ladder on which he was standing functioned properly. He was not injured as a result of a fall. Thus, since the ladder had no legally sufficient causal connection to this injury, it could not be deemed "inadequate" under these facts (see, Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 513)[emphasis added].

In Narducci, plaintiff argued that if he had been provided with a scissor jack, rather than a ladder, he would have had more protection from falling glass and the accident might not have occurred because he would have been working horizontally instead of vertically and would have been in a different location. The Court of Appeals rejected this argument noting that a scissor jack is designated to protect "the worker from falling, an entirely different risk" [emphasis in original] and that the plaintiff was adequately secured on the ladder (Id. at 269; see also, Capparelli, a companion case decided with Narducci, Labor Law §240(1) recovery denied to a worker standing on a ladder installing a ceiling light fixture who was injured by the falling fixture, but did not fall from the ladder).

In the instant case, claimant was standing on a scaffold installing flashing paper when an adjacent hoist struck the end of the roll of flashing paper and caused the roll to crush claimant's hand against a vertical angle iron. As in Narducci, the fact that claimant was working at an elevation when the roll crushed his hand is of no moment. Claimant did not fall from the scaffold and there is no allegation that the scaffold was defective or inadequate (see, Fegundes v New York Telephone, 285 AD2d 526 [Labor Law §240(1) not applicable when worker on a ladder removing a strip of a conduit approximately three feet above his head injured his hand when the conduit came loose from the ceiling and fell; worker did not fall from the ladder]). As noted by the Court of Appeals in Narducci at 268, "[w]orking at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above."

Indeed, here, there is no allegation that the roll of flashing paper was improperly hoisted or that it fell from a higher elevation (see, Jacome v State of New York, 266 AD2d 345, 346 [worker injured while loading a truck when a steel plate that was being lifted into a vertical position on the truck bed "slid sideways" striking claimant's hand; not an elevation related injury; no risk of object falling from a higher elevation]; Schreiner v Cremosa Cheese Corp., 202 AD2d 657 [worker's hand hit by unsecured wooden pallet that was elevated four feet above worker's feet; the Second Department held that the object fell from a minuscule height and was not the type of elevation related injury that the statute was intended to protect against]). Rather, claimant was injured as a result of the horizontal movement of the flashing paper and was not struck by a falling object (see, Smith v Hovnanian, 218 AD2d 68, 71 [worker injured when extension boom lifted sheet rock off a truck and worker's head became pinned between the sheet rock and the wall of the building; injury not covered by Labor Law §240(1) because not falling worker or falling object; rather "horizontal movement"]).

Claimant was exposed to a general hazard of the workplace and not one contemplated to be protected under Labor Law §240(1) (see, Thompson v Ludovico, 246 AD2d 642 [defendant granted summary judgment dismissing claim because crane worker, who was allegedly injured when boom slipped and crushed his arm, failed to establish a prima facie case that Labor Law §240(1) was violated in an elevated related accident; rather, the risk posed was usual and ordinary at a construction site]; Ruiz v 8600 Roll Road Inc., 190 AD2d 1030 [worker denied Labor Law §240(1) recovery where he suffered fatal injuries when a steel beam hoisted by a crane struck him in the head because the Court held that the fatal injuries were not the result of a fall from an elevated work site or from an object falling from an elevated work surface]; Oakes v Niagra Mohawk Power Corp., 176 AD2d 1240 [worker denied Labor Law §240(1) recovery when he was injured due to a tag line tightening around his hand]).

Claimants' motion for summary judgment on the Labor Law §240(1) claim is DENIED and defendant's cross-motion for summary judgment dismissing that claim is GRANTED.
Defendant's Cross-Motion for Summary Judgment
As to the remaining claims, defendant cross-moves for summary judgment on the claims of common law negligence and violation of Labor Law §§ 241(6) and 200(1).

Labor Law §200(1) codifies the common law duty of landowners and contractors to maintain a safe workplace (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra). However, "[n]either retention of inspection privileges nor a general power to supervise alone constitute control sufficient to impose liability" and a landowner is under no obligation to warn a worker of open and obvious dangers or conditions (Brezinski v Olympia & York Water St. Co., 218 AD2d 633, 635). With regard to this claim, as well as the common law negligence claim, there are issues of fact which preclude a granting of summary judgment. Accordingly, defendant's cross-motion to dismiss the Labor Law §200 claim and the common law negligence claim are DENIED.

Labor Law §241, Construction, excavation and demolition work (6) requires owners, contractors, or their agents, to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. A necessary predicate to a §241(6) claim is that the regulation invoked must mandate compliance with "concrete specifications" such as a "'specific, positive command'" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504, 505, supra). A regulation which establishes general safety standards and which adds nothing to the common law rule requiring the provision of a safe workplace is insufficient (Id.). The violation of a regulation is merely some evidence of negligence and contributory and comparative negligence are valid defenses to a § 241(6) claim (Id.).

Claimants failed to allege a violation of a specific regulation. In opposition to defendant's cross-motion, claimants seek to amend their claim and bill of particulars to allege the following violations of the Industrial Code 12NYCRR:
a. 23-6.1(c)(1) ("Only trained designated persons shall operate hoisting equipment and such equipment shall be operated in a safe manner at all times");

b. 23-6.1(e) ("Material hoists shall be operated only in response to a signal system);

c. 23-7.1(c) ("Only trained, designated persons shall operate personnel hoists and such hoists shall be operated in a safe manner at all times");

d. 23-7.2(c)(ii) (Partitions shall separate a moving car from a floor or scaffold platform);

e. 23-7.2(1) (Hoists shall be operated with voice communications).

(Claimants' Reply, ¶ 6 and annexed Exs. A, B). Defendant opposes the amendment and argues that, if the Court permits the amendment, then additional discovery and depositions are necessary regarding the alleged violations.

Leave to amend shall be freely granted unless the proposed amendment is palpably improper or would cause substantial prejudice to the opposing party (CPLR 3025[b]). Determination of such an application is committed to the sound discretion of the trial court (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957). Defendant does not oppose further discovery regarding this limited issue; accordingly there is an absence of substantial prejudice (see, Eagle Ins. Co. v Queens Tunnel Service Station Inc., 287 AD2d 434; Llama v Mobil Service Station, 262 AD2d 457; Berkun v National Health Resources, 255 AD2d 476).

The Court GRANTS claimants' application to amend as to 12NYCRR 23-6.1(e); 23-7.2(c)(ii); 23-7.2(1). The Court DENIES claimants' application to amend as to 12NYCRR 23-6.1(c)(1) and 23-7.1(c) on the ground that these sections are general safety standards which are an insufficient basis for a Labor Law §241(6) claim.

The Court DENIES defendant's application to dismiss claimants' Labor Law §241(6) claim, which has hereby been amended, on the ground that there are issues of fact which preclude summary judgment and, as argued by defendant, the parties need to conduct additional discovery regarding this newly amended claim.

Accordingly, the Court, sua sponte, strikes the Note of Issue and, upon completion of discovery, but no later than August 5, 2002, a new Note of Issue shall be filed with the Court and the matter will be set down for trial.

February 28, 2002
White Plains, New York

Judge of the Court of Claims

[1] The claim of Mary Swift, claimant's wife, is derivative.