RUSSELL v. THE STATE OF NEW YORK, #2002-019-560, Claim No. 102802, Motion Nos.
State's Motion for Summary Judgment seeking dismissal of claim based upon Labor
Law 200, 240 (1) and 241 (6) and common-law negligence is granted; Claimant's
cross motion for summary judgment is denied; claim dismissed.
LEROY RUSSELL, SR.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
WELCH & WELCHBY: Jacob P. Welch, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Law Office of Laurie G. OgdenShelly L. Palmer, Esq., of counsel
August 15, 2002
See also (multicaptioned
The State of New York (hereinafter "State") moves for summary judgment pursuant
to CPLR 3212 dismissing this Claim which alleges causes of action based upon
Labor Law 200, 240 (1), 241 (6), and common-law negligence. Claimant opposes
the motion and cross-moves for summary judgment. The Court heard oral argument
of counsel on July 29, 2002.
The Court has considered the following papers in connection with these
1. Claim, filed July 25, 2000.
2. Verified Answer, filed August 30, 2000.
3. Answer, filed December 11, 2000.
4. Notice of Motion No. M-65152, dated May 3, 2002, and filed May 6,
5. Affirmation of Shelly L. Palmer, Esq., in support of motion, dated May 3,
2002, with attached exhibits.
6. Memorandum of Law, in support of motion, dated May 3, 2002.
7. Notice of Cross-Motion No. CM-65222, dated May 6, 2002, and filed May 7,
8. Affidavit of Leroy Russell, Sr., in support of cross-motion and in
opposition to motion, sworn to April 18, 2002, with attached exhibits.
9. Affidavit of Jacob P. Welch, Esq., in support of cross-motion and in
opposition to motion, sworn to May 6, 2002, with attached exhibits.
10. Memorandum of Law, in support of cross-motion and in opposition to motion,
dated May 6, 2002.
11. Reply Affirmation of Shelly L. Palmer, Esq., in support of motion and in
opposition to cross-motion, dated June 5, 2002, and filed June 6, 2002.
12. Reply Memorandum of Law, in support of motion and in opposition to
cross-motion, dated June 5, 2002.
13. Supplemental Affidavit of Jacob P. Welch, Esq., in support of cross-motion
and in opposition to motion, sworn to June 10, 2002, and filed June 12, 2002,
with attached exhibit.
This Claim arose on October 25, 1999, at approximately 3:00 p.m., at a State
construction project located at the Bridge Street bridge over the Chemung River
in the City of Corning, New York (hereinafter "Project"). At the time of this
incident Claimant was an employee of L.C. Whitford, Co. Inc. (hereinafter
"Whitford"), the general contractor for said Project. Claimant had been
directed by a Whitford employee, Dick Allen, to remove debris from the bridge
comprised of wood forms which were "[l]arge and long 2' x 6' and 2' x 4' boards
with nails sticking out of the sides." (Affidavit of Leroy Russell, Sr., ¶
4). Claimant proceeded to stack these boards on top of a "beaver tail" trailer
when Claimant decided, on his own accord, to climb to the top of the stack to
rearrange the load to make room for additional boards. (Affidavit of Leroy
Russell, Sr., ¶ ¶ 5 & 7). Soon after Claimant climbed to the top,
the load shifted causing him to fall to the bridge's roadway surface
approximately six feet below.
A Notice of Intention was served upon the Attorney General's office on January
19, 2000. The Claim was filed with the Clerk of the Court on July 25, 2000 and
served on the Attorney General's office on or about that same date. For reasons
not pertinent here, the State filed two separate Answers with the Clerk of the
Court on August 30, 2000 and December 11, 2000.
On a motion for summary judgment, the moving party must present evidentiary
facts that establish the party's right to judgment as a matter of law, while the
opposing party must present evidentiary proof in admissible form that
demonstrates the existence of a factual issue. (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Once the moving party has
established its burden, "[t]he 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 [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320,
324). Moreover, the Court must accept the non-moving party's evidence as true
and grant him every favorable inference. (Hartford Ins. Co. v General Acc.
Group Ins. Co., 177 AD2d 1046, 1047). Here, the underlying facts leading up
to this accident are not in dispute, thus leaving this case ripe for
determination by way of these summary judgment motions.
I. Labor Law 200 and common-law negligence
Labor Law 200 is a codification of the common-law duty of an owner or
contractor to exercise reasonable care to provide workers with a safe place to
work. (Miller v Wilmorite, Inc., 231 AD2d 843). However, it is
well-settled that "[g]eneral supervisory authority at the work site for the
purpose of overseeing the progress of the work and inspecting the work product
has been found insufficient to establish a cause of action under Labor Law
§ 200 [citations omitted]." (Riccio v Shaker Pine, 262 AD2d 746,
748, lv denied 93 NY2d 1042). Moreover, "[a]n owner breaches no duty to
an injured worker when the claimed defect is not in the land itself but, rather,
arises out of a contractor's own methods or negligent acts occurring as a detail
of the contractor's work (see, Rapp v Zandri Constr. Corp., 165 AD2d 639,
641)." (Comes v New York State Elec. & Gas Corp., 189 AD2d 945, 946,
affd 82 NY2d 876, 877). Additionally, the fact of "[a]n owner's mere
retention of contractual inspection privileges...does not amount to control
sufficient to impose liability, and that where the injury is due to the method
of work, Labor Law § 200 and common law negligence claims must be dismissed
in the absence of proof of the owner's actual control, notwithstanding
the existence of questions of fact regarding an owner's contractual right
of control [citations omitted])." (Brown v New York City Economic Dev.
Corp., 234 AD2d 33; emphasis in original).
The State contends that Claimant testified at his deposition that the State did
not provide him with any instructions or supervision in terms of his job.
(Claimant's Exhibit E, pp 13-14 & 32). In opposition, Claimant points to
the deposition testimony of several individuals which he argues support his
position that the State had control and authority over the Project. Claimant
also asserts that the State's contractual authority over safety decisions as
demonstrated by weekly safety meetings raises questions of fact in relation to
this issue sufficient to defeat a motion for summary judgment.
In this Court's view, the State's reliance on Claimant's own deposition
testimony that no one from the State supervised or controlled his actions is
sufficient to satisfy its burden that it lacked supervision or
In fact, Claimant's own deposition
testimony confirms that although State representatives may have instructed
Whitford employees, such as Claimant, on what
to do, there is no evidence
that any State representative instructed him on how
to load the trailer.
As such, the burden shifted to Claimant to come forward and lay bare his proof
on this issue. (Siegel, NY Prac § 281, at 442 [3d ed]). The portions of
various witnesses' deposition testimony submitted by Claimant do not offer any
evidence that anyone in the State controlled or supervised Claimant on how to
load the debris on this flatbed trailer. (Affidavit of Jacob P. Welch, Esq., pp
2-3). Moreover, the State's retention of general safety decisions through
contractual provisions does not equate to specific supervision or control over
every aspect of the work being performed. Consequently, no showing has been
made by Claimant that any State representative supervised or controlled the
manner in which the work was performed. Accordingly, the State's motion for
summary judgment with respect to Labor Law 200 and the negligence causes of
action is granted.
It is well-settled 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 [citation
omitted]." (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491,
rearg. denied 87 NY2d 969). Moreover, it is an accepted tenet that
"[t]he extraordinary protections of Labor Law § 240 (1) extend only to a
narrow class of special hazards, and do 'not encompass any and all perils
that may be connected in some tangential way with the effects of gravity'
(Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in
original])". (Nieves v Five Boro Air Conditioning & Refrig. Corp.,
93 NY2d 914, 915-916).
The State contends that Labor Law 240 (1) is inapplicable due to the prevailing
case law in the Fourth Department, the governing appellate authority in this
which states that a fall from a
truck is not the type of extraordinary elevation risk covered by Labor Law 240
(1) nor was there a failure to provide one of the safety devices enumerated in
the statute. (Phelan v State of New York
, 238 AD2d 882 [4th Dept], lv
90 NY2d 812; Tillman v Triou's Custom Homes
, 253 AD2d 254 [4th
Dept]; DePuy v Sibley, Lindsay & Curr Co.
, 225 AD2d 1069 [4th Dept];
, Vargas v State of New York
, 273 AD2d 460 [2d Dept]). In
opposition, Claimant relies upon and accurately recites the contrary position of
the Third Department involving falls from truck beds. (Curley v Gateway
, 250 AD2d 888 [3d Dept]; Monroe v Bardin
, 249 AD2d 650
[3d Dept]; Hutchins v Finch, Pruyn & Co.
, 267 AD2d 809 [3d Dept],
94 NY2d 762). However, Claimant has failed to articulate any
sound basis for this Court to ignore the precedents of the Fourth Department and
apply the law of the Third Department in a claim which arose in and is governed
by the Fourth Department. (CCA 24). As such, this Court will apply the law as
it exists within the Fourth Department.
The Court finds Claimant's attempts to distinguish the Fourth Department cases
relied upon by the State unpersuasive. For instance, in Tillman v Trious's
Homes, 253 AD2d 254, a worker was in the process of unloading cement blocks
from the bed of a truck using a boom when the truck tipped causing the worker to
fall 4 ½ feet to the ground below. Claimant attempts to distinguish
Tillman based upon the fact that the worker there was standing on the
surface of the truck bed as compared to the Claimant here who was standing atop
a load on the bed of the trailer. In Tillman the Fourth Department
succinctly described the issue presented as follows "[t]he narrow question to
resolve in this case is whether the surface of a flatbed truck constitutes an
elevated work surface for purposes of Labor Law § 240 (1). Continuing, the
Fourth Department stated:
[w]e conclude that it does not....Labor Law § 240 (1) does not cover
plaintiff's accident because there was no exceptionally dangerous condition
posed by the elevation differential between the flatbed portion of the
truck and the ground, and there was no significant risk inherent in the
particular task plaintiff was performing because of the relative elevation at
which he was performing that task [citations omitted].
(Tillman, 253 AD2d at 257; emphasis added).
In other words, this Court agrees with the Fourth Department's conclusion that
"[t]here was no exceptionally dangerous condition posed by the elevation
differential between the flatbed portion of the truck and the ground".
(Tillman, 253 AD2d at 257). Claimant fails to submit any authority from
the Fourth Department from which this Court could conclude that the factual
difference noted is indeed a distinguishing factor. Accordingly, the Court finds
that a fall from a load on the surface of a flatbed trailer due to the shifting
of that load does not involve the extraordinary elevation risks contemplated by
the statute. (Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841).
The Court finds Claimant's remaining arguments to be without merit. Claimant
did not fall from an elevated work site and his contention that he would have
caught himself if there had been a railing on the trailer is speculative. In
any event, the lack of a railing on the trailer does not bring this accident
within Labor Law 240 (1). (Gaul v Motorola, Inc., 216 AD2d 879).
Consequently, the State's motion for summary judgment relative to the Labor Law
240 (1) cause of action is granted and Claimant's cross-motion is denied.
III. Labor Law 241 (6)
It is well-settled that Labor Law 241 (6) imposes a nondelegable duty on a
property owner to comply with a specific standard of conduct set forth in the
rules and regulations of the Commissioner of Labor (hereinafter "Industrial
Code") as opposed to a general reiteration of common law principles. (Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505). In order to make out
a prima facie cause of action under Labor Law section 241 (6), a claimant
must allege that the State violated a rule or regulation of the Commissioner of
Labor that sets forth a specific standard of conduct, as opposed to a general
reiteration of common law principles. (Id.). Moreover, the violation of
that specific standard must be shown to be a proximate cause of the accident.
(Ares v State of New York, 80 NY2d 959).
The State's sole basis for dismissal of this cause of action is Claimant's
failure to itemize any specific Industrial Code violations in his Claim, a
prerequisite to a valid claim under Labor Law 241
, 81 NY2d 494, 503).
Claimant conceded his lack of proof on this portion of the motion at oral
argument. Consequently, the State's motion for summary judgment is granted with
respect to Labor Law 241 (6).
Accordingly, for the reasons stated above, it is ORDERED that the State's
Motion for Summary Judgment, Motion No. M-65152, is GRANTED in its entirety and
Claim No. 102802 is DISMISSED; and Claimant's cross-motion for summary judgment
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of
The Court finds Claimant's statement in his
supporting affidavit to the contrary to be conclusory and self-serving. In his
supporting affidavit Claimant avers that "[t]o deponent's best knowledge, the
State of New York controlled what L.C. Whitford had to do during the project and
how it was to be done, including safety requirements." (Affidavit of Leroy
Russell, Sr., ¶ 10).
Labor Law 240 (1) states, in part, that all
contractors and owners:
[s]hall 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
This Claim arose in Steuben County which lies
within the 7th judicial district under the auspices of the Fourth Department.
Appeals from Court of Claims trial decisions go to the department in which the
claim arose. (CCA 24; Payant v State of New York
, 92 AD2d 707, lv
59 NY2d 602).
Nor does Claimant's Verified Bill of
Particulars contain any such itemization. The Court was not provided a copy of
the Notice of Intention.