New York State Court of Claims

New York State Court of Claims

HMIELENSKI v. THE STATE OF NEW YORK, #2002-015-570, Claim No. 103040


Claim for wrongful death of claimant's decedent at highway re-paving site dismissed due to failure to prove liability since claimant failed to demonstrate by admissible evidence cause of decedent's fall, speculation and conjecture being insufficient.

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: Dennis First, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Taylor & AssociatesDavid Taylor, Esquire
Third-party defendant's attorney:

Signature date:
September 23, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim which seeks to recover money damages for the conscious pain and suffering and the wrongful death of claimant's decedent at a highway re-paving site on September 10, 1998 took place in Albany, New York on May 29, 2002. The trial was limited to causes of action sounding in common law negligence and an alleged violation of section 200 of the Labor Law.[1]

At the trial no witnesses were called. The attorneys for the parties stipulated to the receipt of exhibits "1" and "3" through "19" and after some discussion further stipulated to the receipt of exhibit "2." The claimant rested upon the Court receiving the exhibits in evidence. Defense counsel then moved to dismiss the claim based on claimant's failure to prove a prima facie case of negligence against the defendant and rested without calling any witnesses. The court granted the separate requests of counsel to submit post trial briefs and the trial was concluded.

The following facts are not disputed. Claimant's decedent (James M. Deyoe) was a foreman employed by Callanan Industries which had been awarded a contract to resurface a number of State owned highways in Dutchess, Putnam and Ulster Counties (
see exhibit 1). At the time of this tragic accident on September 10, 1998 Callanan had completed most of the work required on State Route 9W in Esopus, New York and its employees were reestablishing the shoulders of the roadway. That process involved the use of an excavator which graded windrow material (i.e., grass, weeds, twigs, rocks and asphalt previously removed from the shoulder area) back to the outside edge of the newly paved shoulder surface. After establishing a smooth grade any excess windrow material would be loaded onto a dump truck and hauled away.
At the time of the accident Callanan employees had just returned from a lunch break and claimant's decedent, the project foreman, was directing or spotting a dump truck driven by Howard Eaton, a fellow employee of Callanan, which was backing into position to receive the excess windrow material. The decedent was walking backwards in the northbound lane near the center dividing line of the two lane road directing the driver through the side view mirror mounted on the passenger side of the vehicle when he apparently fell and was run over. The final autopsy report received in evidence as Exhibit 14 listed the cause of death as "blunt force injuries of head and brain."

The Court notes that in addition to Howard Eaton there were at least two witnesses to the accident; Amy K. Kelly, a Callanan flagger and Adam Walencik, a teamster (
see exhibit 3). As previously noted, neither Kelly nor Walencik were called to testify at the trial.
In attempting to prove liability claimant chose to rely largely upon photographs taken at the scene by an unidentified photographer. The photos are stamped on the reverse side "Troop F ID Bureau, New York State Police Crystal Run Road, Middletown, NY 10940" (
see exhibits 5, 6 and 11). Claimant also relies upon the transcript of an examination before trial of Richard M. Gaupman (exhibit 2) and upon an uncertified DOT accident report (exhibit 3). Although Richard Gaupman was the New York State Department of Transportation engineer in charge (EIC) of this project he was absent from the site when the accident happened and did not arrive there until more than an hour subsequent to its occurrence. Gaupman therefore could testify only to his observation of the scene upon his arrival and could offer no testimony regarding the manner in which the accident took place or the actual condition of the roadway at the time of the accident.
So too, although the parties stipulated to the receipt of certain black and white photographs depicting the scene of the accident (exhibits 5, 6, and 11) and to laser color printer copies of other photographs of the scene (exhibit 4) these photos were offered not merely as an aid to understanding testimony or other evidence but as having intrinsic probative value so long as they are what they purport to be (New York Evidence Handbook, § 9.8 Identifying Real and Demonstrative Evidence). Here claimant seeks to prove by the admission of such photographs that the roadway on which the decedent fell contained debris of some kind which claimant argues was a substantial factor in causing the decedent's accident. While it is generally true that to be admissible photographic evidence must be authenticated or identified by testimony of a witness with knowledge that the photographs are a fair and accurate representation of the scene of the accident (
Catanese v Quinn, 29 AD2d 675) such testimony can be dispensed with upon an admission prior to trial. The Court will treat the stipulation of counsel made on the record as tantamount to an admission of the correctness or fairness of the photographic representations pursuant to CPLR 3123 (see, Fisch On New York Evidence § 142 [2d ed., 1977]).
The same treatment is being afforded other documentary evidence such as the DOT accident report and the statements given by Kelly and Walencik to the New York State Police which would normally require authentication in order to be considered admissible evidence.

The standard for determining whether the instant claimant has met her burden of proving the defendant's liability under common law negligence or Labor Law § 200 was set forth by the Court of Appeals in
Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 where the Court held:
Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty 'is that the party charged with that responsibility have the authority to control the activity bringing about the injury' (Russin v Picciano & Son, 54 NY2d 311, 317). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v Stout, 80 NY2d 290, 295).
In the instant case claimant has attempted to predicate the State's liability upon the presence of two Department of Transportation (DOT) inspectors (Charles J. Siter and Robert McKenna) whose duties allegedly included overseeing the progress of the job and keeping track of quantities of materials used. Claimant has, however, offered no proof that the DOT inspectors directed Callanan employees, including claimant's decedent, with respect to the manner in which the work was performed.

It is established that neither the existence of a State contract nor the presence of its engineer or inspector at a work site establish sufficient control to impose liability upon the State pursuant to Labor Law § 200 or common law negligence (
Kalofonos v State of New York, 115 Misc 2d 692, 699 affirmed 104 AD2d 75; Ross v Curtis-Palmer Hydro-Electric Co., 295 AD2d 723, 743 NYS2d 630). In Soshinsky v Cornell Univ., 268 AD2d 947, the Third Department held that "an essential precondition to liability under either common-law negligence or Labor Law § 200 is the authority to control the activity bringing about the injury (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Notably, an owner or general contractor's retention of general supervisory control, presence at the worksite or authority to enforce general safety standards is insufficient to establish the necessary control" [citations omitted].
Here, as in the recent case of
Sainato v City of Albany, 285 AD2d 708, although the owner retained some general, supervisory control to ensure that the contractor was performing the work in a safe manner it did not exercise any direct control over the contractor's employees or the manner in which the work was performed. Under such circumstances the State cannot be held liable pursuant to Labor Law § 200 or under the common law (see, Soshinsky v Cornell Univ., supra; see also Blysma v County of Saratoga, ____ AD2d ____, 744 NYS2d 564).
Claimant's attorney also argued in his post-trial brief that liability pursuant to common law negligence and Labor Law § 200 may be imposed on the basis that the State had notice of a dangerous condition, i.e., the presence of debris on the roadway. The Court's review of the evidence, including the photographs of the scene, do not support the claimant's assertion in this regard. While some of the photographs show the presence of windrow material on or near the shoulder of the roadway (e.g., exhibit 5) the eyewitnesses placed claimant's decedent on the passenger side of the vehicle in the northbound lane near the center line of the newly paved roadway immediately prior to the accident. The photographic evidence corroborates that testimony and fails to disclose the presence of any debris in the decedent's alleged path along the center line of the road as described by the witnesses. In the recent case of
Williams v Hannaford Bros. Co., 274 AD2d 649, 650 the Appellate Division held that "[t]o sustain liability in this type of accident, the cause of the fall must be specific and definite, speculation and conjecture being simply insufficient (see, Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699; Leary v North Shore Univ. Hosp., 218 AD2d 686, 687)."
The claimant has failed to establish that the State exercised any control over the manner in which the Callanan employees performed the work of "backing up" the shoulders. Moreover, there is no proof that the claimant's decedent's accident was caused by a dangerous condition at the work site; let alone one of which the State was shown to have had notice. As claimant has not established the defendant's liability by a preponderance of the evidence the claim must be and hereby is dismissed.

The Clerk shall enter judgment in accordance with this decision.

September 23, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]An additional cause of action based on section 241 (6) of the Labor Law was dismissed on motion by decision and order dated May 21, 2002.