New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2002-019-560, Claim No. 102802, Motion Nos. M-65152, CM-65222


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.

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:
WELCH & WELCHBY: Jacob P. Welch, Esq., of counsel
Defendant's attorney:
BY: Law Office of Laurie G. OgdenShelly L. Palmer, Esq., of counsel
Third-party defendant's attorney:

Signature date:
August 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 motions:
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, 2002.
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, 2002.
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 control.[1] 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.

II. Labor Law 240 (1)[2]

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 instance,[3] 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 denied 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]; see also, 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 Communications, 250 AD2d 888 [3d Dept]; Monroe v Bardin, 249 AD2d 650 [3d Dept]; Hutchins v Finch, Pruyn & Co., 267 AD2d 809 [3d Dept], lv denied 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 (6).[4] (Ross, 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 is DENIED.

August 15, 2002
Binghamton, New York
Judge of the Court of Claims

[1]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).

[2]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 employed.
[3]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 denied 59 NY2d 602).
[4]Nor does Claimant's Verified Bill of Particulars contain any such itemization. The Court was not provided a copy of the Notice of Intention.