New York State Court of Claims

New York State Court of Claims

HMIELENSKI v. THE STATE OF NEW YORK, #2002-015-252, Claim No. 103040, Motion No. M-64600


On summary judgment motion court dismissed Labor Law § 241 (6) claim but found potential fact issue with regard to happening of accident in which claimant's decedent was crushed by truck while directing its backing up at State highway construction site.

Case Information

JUNE HMIELENSKI, as Administratrix of the Estate of JAMES M. DEYOE, Deceased
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:
O'Connor, O'Connor, Mayberger & First, P.C.By: P. Baird Joslin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Taylor & MatalavageKeith M. Frary, Esquire, of counsel
Third-party defendant's attorney:

Signature date:
May 21, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment seeking dismissal of the claimant's causes of action under § 200 of the Labor Law and for common law negligence is denied and that part of the motion seeking to dismiss the claimant's cause of action under Labor Law § 241 (6) is granted. The claim, commenced by claimant as administratrix of her deceased brother's estate, seeks money damages for the conscious pain and suffering and wrongful death of James M. Deyoe, claimant's decedent. The accident giving rise to the claim occurred on September 10, 1998 at approximately 12:33 p.m. at a State highway construction project located near the intersection of State Route 9W and Parker Avenue in the Town of Esopus, Ulster County. At the time of the accident James M. Deyoe was an employee of Callanan Industries, Inc. (Callanan) the contractor for the project which involved the resurfacing of the roadway, reestablishment of the shoulders and the application of pavement markings. The project was virtually complete when the accident occurred except for the grading of the area adjacent to the shoulder's paved surface; the removal of excess windrow by dump truck and final clean up of the construction site.

The claim states that "[a]t the above-mentioned time and place, the Claimant/decedent, James M. Deyoe, was acting as a flagman and while he was directing a vehicle being driven by one Howard J. Eaton to back up at the said construction site, he was caused to trip/slip and fall on the defective and unreasonably dangerous roadway and be crushed by the said vehicle." A notice of intention to file a claim was served on December 9, 1998. The claim was filed on September 6, 2000 and served on the Attorney General's office on September 5, 2000.

Although the claim does not set forth separately designated causes of action for common law negligence and alleged violations of Labor Law § 200 and § 241 (6) as required by CPLR 3014 and 22 NYCRR § 206.6 [b] an examination of claimant's verified bill of particulars (defendant's Exhibit C at paragraphs 3 (e) and 3 (m-s)) suggests that such was claimant's intent. Moreover, both parties addressed the above stated provisions of the Labor Law in their motion papers.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the 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 (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 2002 WL 826797 [N.Y.A.D. 3 Dept]).

In support of the motion the defendant has submitted a copy of the pleadings; an affidavit by defense counsel; the transcript of the examination before trial of Richard M. Gaupman; unauthenticated photographs of the accident scene; an uncertified and unsworn copy of an Initial Notification of Work Zone Accident form completed by Mr. Gaupman and photocopies of supporting depositions of witnesses Adam Walencik, Howard Eaton and Amy Kelly. Claimant opposed the motion solely by the affidavit of counsel.

As to the proof submitted in support of the motion, it must first be noted that while the affidavit of an attorney who is without personal knowledge of the underlying facts is of no probative value it "may serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in acceptable form" (Bradt v John Hancock Mut. Life Ins. Co., 98 AD2d 886, 887).

Thus, the Court will consider the pleadings submitted as well as the affidavit of defense counsel to the extent it references and relates to the deposition transcript of Richard Gaupman. Although the Gaupman deposition transcript is unsigned, it has been certified by the attending stenographic reporter and was relied upon by the claimant in its opposition to the motion (see, Morchik v Trinity School, 257 AD2d 534, 535).

Neither the unsworn and uncertified report prepared by Mr. Gaupman nor the unauthenticated photographs constitute proof in admissible form and will therefore not be considered in the Court's disposition of the motion (Rue v Stokes, 191 AD2d 245; Lewis v General Elec. Co., 145 AD2d 728). Nor will the Court consider the unsworn witness statements taken by the New York State Police, even though given under penalty of perjury (Salas v Town of Lake Luzerne, 265 AD2d 770, 771).

In his deposition Richard Gaupman related that he was the engineer-in-charge of the Route 9W resurfacing project in September, 1998. He described the area of Route 9W as a two lane north/south highway with one lane of travel in each direction and identified the precise location of the project site as at or near reference marker 9W 86031173. Mr. Gaupman indicated that as of the date of the accident the repaving project on Route 9W had been largely completed stating "[t]he road was final striped, pavement marking, the white and yellow lines on the road, and the contractor was in the process of backing up the shoulders and general cleanup of the site". The term "backing up the shoulders" was explained as the removal of windrow material following final paving of the roadway and shoulders. Windrow material was described as grass and dirt removed from the shoulder area prior to the application of a subbase material. After final paving of the shoulder area the windrow material is graded back to the outside edge of the paved shoulder and any excess is removed. Mr. Gaupman related his understanding that the incident at issue herein occurred while the contractor was preparing to remove the excess windrow material from the work site. Despite some utility in providing context to the event, Mr. Gaupman's deposition testimony is of no probative value in determining the instant motion for the simple reason that he was not present at the job site on the day of the accident. Mr. Gaupman testified that he last visited the Route 9W site on September 9, 1998. He stated that on September 10, 1998 he was at the DOT field office in Pleasant Valley, New York when he was notified of the incident "by one of my inspectors on that job site around 1:00 o'clock, 1:05, somewhere around there. I arrived approximately between 1:45 and 2:00 o'clock at the site, at the specific site." Mr. Gaupman goes on to speculate, based largely on hearsay sources, as to the work being performed and the actions undertaken by individuals at the site at the time of the incident. His testimony is of no value in determining the manner in which the event occurred and his observations as to the condition of the roadway and the location of both the vehicle involved and the decedent one hour subsequent to the incident are wholly inadequate to establish the defendant's entitlement to judgment as a matter of law relative to the claimant's Labor Law § 200 and common law negligence causes of action. "Merely highlighting apparent gaps in its adversary's case does not entitle the moving party to summary judgment. To succeed, there must be affirmative evidentiary proof demonstrating the movant's right to judgment as a matter of law; until that condition is met, the strength of the opponent's proof is immaterial [citations omitted]" (Clark v Globe Bus. Furniture, 237 AD2d 846, 847). That portion of the defendant's motion seeking summary judgment as to the claimant's causes of action for negligence and violation of Labor Law § 200 is denied.

A different result is required relative to the defendant's motion to dismiss the cause of action allegedly arising under Labor Law § 241 (6). It is well settled that Labor Law § 241 (6) imposes a nondelegable duty upon an owner of property to comply with concrete specifications set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In order to establish a prima facie cause of action pursuant to § 241 (6) a claimant must allege that the State violated a rule or regulation of the Commissioner of Labor which sets forth "a specific and concrete standard of conduct governing his working conditions" (Welsh v Cranesville Block Co., 258 AD2d 759, 760) as opposed to a general reiteration of common law principles (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 504-505). Violation of the safety regulation must also be shown to be a proximate cause of the accident (Ares v State of New York, 80 NY2d 959).

As a preliminary matter, defense counsel in his reply affidavit argues that claimant cannot rely upon Part 23 of 12 NYCRR in its entirety but must cite a specific section of the regulations. The Court agrees that in order to assert a viable Labor Law § 241 (6) claim a party must allege violation of a specific code section (Samuel v A.T.P. Dev. Corp., 276 AD2d 685) and that the violation is applicable to the facts of the particular case (Bender v TBT Operating Corp., 186 Misc 2d 394).

The defendant further argues that the Court should not consider claimant's allegation, offered for the first time in opposition to the motion, that the defendant violated 12 NYCRR § 23-1.29 (a), a specific provision of the Industrial Code which claimant contends supports a viable Labor Law § 241 (6) claim. This issue was recently addressed by the Appellate Division, Second Department in Kelleir v Supreme Industrial Park, LLC, 2002 WL 534600 (N.Y.A.D. 2 Dept.) where the Court said: "Contrary to the defendants' contention, the Supreme Court properly considered the plaintiffs' allegation of a State Industrial Code (hereinafter the Industrial Code) violation which was raised for the first time in opposition to the defendants' motion for summary judgment." That Court further stated that while a plaintiff must allege a violation of a specific and concrete provision "a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim (see Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231)" (Kelleir v Supreme Industrial Park, LLC, supra).

Subdivision (a) of 12 NYCRR 23-1.29 provides:
Section 23-1.29 Public vehicular traffic.

(a) Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.
It is immediately apparent that claimant's reliance upon this section is misplaced. Here claimant's decedent was struck and killed by a construction vehicle engaged in the repaving project on which claimant's decedent was employed. Public vehicular traffic, to which the cited regulation is addressed, played no role in the events giving rise to the claim and a violation of § 23-1.29(a) will not support a cause of action pursuant to Labor Law § 241 (6) under the facts of this case (Alix v Utica & Mohawk Val. Ch. of Natl. Ry. Historical Socy., 240 AD2d 995; White v Sperry Supply & Warehouse, 225 AD2d 130, 134) Accordingly, the defendant's motion for summary judgment dismissing claimant's cause of action under Labor Law § 241 (6) is granted.

In sum, the defendant's motion for summary judgment dismissing claimant's cause of action for common law negligence and violation of Labor Law § 200 is denied and that portion of the motion seeking dismissal of the cause of action asserted under Labor Law § 241 (6) is granted.

May 21, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated January 15, 2002;
  1. Affidavit of Keith M. Frary sworn to January 24, 2002 with exhibits;
  2. Affidavit of P. Baird Joslin sworn to February 26, 2002;
  3. Reply affidavit of David R. Taylor sworn to March 4, 2002.