This Claim arose on January 10, 2001 at a State construction project located at
the Apalachin-Campville bridge in the Town of Owego, New York (hereinafter
"Project"). At the time of this incident Claimant was an employee of Tioga
Construction (hereinafter "Tioga"), the general contractor for said Project. At
the time of this accident, Claimant was setting and splicing steel beams as part
of the bridge construction. The steel beam or girder was lifted and held in
place by one crane, while an aerial basket was raised to position Claimant and
his co-worker to bolt it into place. This work took place approximately 80 feet
above the ground. More specifically, Claimant was standing at the control panel
in the Genie aerial basket (hereinafter sometimes "Genie") while it was extended
to its maximum 80-foot capacity. Claimant and his co-worker were pinning and
bolting the steel beam and were about to start on the step they describe as the
web splice. Claimant put his hand on one of the control panel levers to move
the basket upwards in order to intentionally touch the basket's railing to the
underside of the beam (State's Exhibit E, p 46), the purpose of which will be
addressed below. As Claimant was moving the basket slightly upwards, the basket
suddenly surged upwards causing either a pin or bolt protruding from under the
beam to hit the basket's control panel. Claimant's hand was pinned between the
basket's railing and the beam. Apparently this impact simultaneously damaged
the Genie's control panel preventing Claimant from using the same lever to lower
the basket causing Claimant's hand to remain trapped between the basket's
railing and the beam. Ultimately, Claimant pulled his own hand free. Claimant,
who is left-handed, suffered left-hand and wrist injuries including a partial
amputation of his left thumb.
Claimant's co-worker, Aaron Reinhardt, described an informal but often utilized
technique of wedging an aerial basket's railings up against a steel beam in
order to stabilize the basket by minimizing the natural tendency of the aerial
basket to sway. (State's Exhibit G, pp 24-29, & 51). Mr. Reinhardt
indicated he had never received any formal training of such a technique.
(State's Exhibit G, p 42). William Vedder, Tioga's Project superintendent, was
also aware of this stabilization technique used by workers on the 80-foot Genie
lift. (State's Exhibit H, pp 23-24).
The parties rely on essentially the same evidence including deposition
transcripts from Claimant, his Tioga co-workers and supervisors, a State
inspector and State engineers from said Project, as well as the pleadings,
discovery, and photographs. Claimant also submits copies of the Project
Inspector's and Engineer's daily reports. The Court will review the relevant
proof as necessary in relation to each of the asserted causes of action and
these competing motions for summary judgment.
Generally, it is well-settled that 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).
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 [citations omitted]." (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,
Inc., 262 AD2d 746, 748, lv dismissed 93 NY2d 1042).
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, emphases in
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.
(State's Exhibit E, pp 34-58). The Court agrees that Claimant specifically
testified that he received no instructions regarding the operation of this
aerial lift, from the State, his employer, or otherwise. (State's Exhibit E, pp
20-21). In this Court's view, the State's reliance on Claimant's own deposition
testimony is sufficient to satisfy the State's initial burden that it lacked
supervision or control. 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
In opposition, Claimant argues the State's five on-site inspectors had
"hands-on" control and authority over the Project. Upon a review of these
depositions, the Court finds Claimant's description of the State's degree of
supervision and control to be an overstatement of the deposition testimony of
the various witnesses. To the contrary, the Court finds although State
representatives may have instructed Tioga employees, such as Claimant, on
to do, there is no evidence that any State representative instructed
him on how
to set or splice the beams or how to operate and/or maneuver
the aerial lift. Nothing in either the engineer's or inspector's daily reports
indicate otherwise. In this Court's view, the most informative deposition on
the issue of supervision and control comes from Steve Gardels. Mr. Gardels is
not a State employee, but rather was employed by Shumaker Engineering, a
sub-consultant to Hunt Engineering, the primary inspecting consultant on the
Mr. Gardels indicated he had minimal
steel inspection experience, but nevertheless was assigned the role of steel
inspector on this Project. Mr. Gardels described his inspection
responsibilities as making sure the contractor was following State contract
specifications. More specifically, Mr. Gardels stated he focused on checking
the contractor's torque on the bolts and the calibration of wrenches, as well as
ensuring the State was following correct bolting procedures and using proper
parts. (State's Exhibit L, pp 22, 31, 56-57, 60). At no time did Mr. Gardels
testify that he in any way supervised or controlled the manner of operation of
the aerial lift. In fact, Mr. Gardels indicated that although he had ridden as
a passenger in aerial lifts he was not familiar with lift controls. (State's
Exhibit L, pp 18, 20, 65-66). Further, Mr. Gardels stated that at the time of
this accident the workers were involved with "shoving bolts", a procedure that
took time and did not require his attendance, let alone his supervision.
(State's Exhibit L, p 62). Additionally, Mr. Gardels admitted to having seen
only accidental contact between Genie lifts and a beam, but denied any such
formal technique existed. (State's Exhibit L, p 45).
The Court agrees with the State's characterization that "[w]hile Inspector
Gardels was on occasion taken up in an aerial basket by Tioga Construction
employees in order to make sure that the correct amount of torque was being
applied when nuts were attached to bolts, he did not give the men instructions
in how to operate or position the baskets. Indeed, he did not know how to
operate an aerial basket...." (Mlynarski letter dated September 4, 2002, p 2).
In short, the various witnesses' deposition testimony do not offer any evidence
that anyone in the State controlled or supervised Claimant in any manner
whatsoever. For instance, Claimant's co-worker, Aaron Reinhardt, testified that
he received no formal training regarding the operation of the aerial lift nor
any instructions other than from reviewing the instruction manual and those
received from the rental company.
Exhibit G, pp 12, 18, 23 & 42). 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 the State 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)
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 Court agrees that aerial baskets have been deemed to
be the functional equivalent of a ladder and/or scaffold and thus this case
comes within the purview of Labor Law 240 (1). (Drew v Correct Mfg.
Corp., Hughes-Keenan Div., 149 AD2d 893). As such, this Court must
determine whether as a matter of law this safety device, the aerial lift, was
"so constructed, placed and operated as to give proper protection." (Labor Law
240 ). In order to be successful on a summary judgment motion on Labor Law
240 (1), Claimant must establish a violation of the statute and proximate cause.
(Amedure v Standard Furniture Co., 125 AD2d 170, 172).
In Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914,
the Court of Appeals held that a ladder served the core objective of the statute
by preventing a worker from falling. Moreover, the Court stated that "[w]here
an injury results from a separate hazard wholly unrelated to the risk which
brought about the need for the safety device in the first instance, no section
240 (1) liability exists [citations omitted])." (Nieves, 93 NY2d at
916). In this Court's view, the real hazard at issue here was the relatively
unprotected control panel that was vulnerable to a bolt or pin protruding from
under the beam. This hazard, however, is not related to a gravity-related risk.
As such, in this Court's view, the safety device - the Genie - served its
function by preventing Claimant from falling during the process of setting and
splicing the steel beams. Stated another way, Claimant has not indicated how
any other safety device enumerated in the statute could have prevented this
accident from occurring. (Murphy v Broadway 48-49th St. Assocs., 246
By way of comparison, research has revealed only a few cases dealing
specifically with aerial lifts. For instance, in Moore v Metro N. Commuter
, 233 AD2d 192, a worker's arm was caught between the ceiling of the
work site and the top of an aerial basket because of a control malfunction. The
First Department dismissed the Labor Law 240 (1) claim because the case "did not
involve a fall, or a falling object...." (Id.
at 192). Here, Claimant
argues that the presence of the hoisted beam overhead distinquishes this case
. This Court disagrees, however, since the fact that the beam
was suspended overhead played no gravity-related role in this accident. In
Salzler v New York Tel. Co.
, 192 AD2d 1104, the plaintiff was in an
aerial basket that had been fully lowered when a co-worker retracted the truck's
outriggers, destabilizing the truck, which then rolled over due to a defective
emergency brake causing the plaintiff to be thrown 12 feet to the ground. The
Fourth Department affirmed the trial court's grant of partial summary judgment
to plaintiff finding that the defective brakes amounted to a failure to provide
proper protection under the statute. Finally, in Anarumo v State of New
, a worker was in an aerial basket and was holding a steel plate
overhead when the basket dropped causing the steel plate to fall and strike the
worker. (Anarumo v State of New York
, Ct Cl, January 16, 2001, Marin,
J., Claim No. 93045, Motion No. M-62402 [UID No.
). Judge Marin granted summary
judgment to the claimant on Labor Law 240 (1). However, Salzler
involved a fall and/or a falling object or, stated another way, a
gravity-related hazard. Here, Claimant's injury was not caused by any
gravity-related hazard, but rather arguably a design flaw in the aerial basket
by failing to place a shield over the control panel which is not related to the
gravity-related safeguards of Labor Law 240 (1).
Consequently, the State's motion for summary judgment relative to the Labor Law
240 (1) is granted and Claimant's cross-motion on Labor Law 240 (1) is
III. Labor Law 241 (6)
It is well-settled that Labor Law 241 (6) imposes a non-delegable duty on a
property owner to comply with specific standards of conduct set forth in the
rules and regulations of the Commissioner of Labor (hereinafter "Industrial
Code") as opposed to general reiterations of common law principles. (Ross v
Curtis-Palmer Hydro-Elec. Co.
, 81 NY2d 494, 504). Moreover, the violation
of a specific standard must be shown to be a proximate cause of the accident.
(Ares v State of New York
, 80 NY2d 959). Here, the State challenges all
but one of the twelve provisions of the Industrial Code in this Claim and Bill
In opposition, Claimant
addresses only three of these provisions, apparently conceding the factual or
legal inadequacy of the remaining provisions. That having been said, however,
the Court will still review each Industrial Code provision relied upon by
Claimant in the pleadings.
Industrial Code 23-1.5
The State correctly asserts that courts have consistently found that 12 NYCRR
23-1.5 does not set forth a specific standard of conduct sufficient to support a
cause of action pursuant to Labor Law 241 (6). (Stairs v State St.
Assocs., 206 AD2d 817, 818). Claimant offers nothing to contradict such a
conclusion. Consequently, Industrial Code 23-1.5 cannot support a cause of
action under Labor Law 241 (6) and, as such, this cause of action is
Industrial Code 23-1.7
The State argues that 23-1.7 is factually inapplicable, and Claimant offers
nothing in response. The Court has reviewed the eight subdivisions and finds
none are factually applicable to the case at
Consequently, Industrial Code 23-1.7
does not support a cause of action under Labor Law 241 (6) under these
circumstances and, as such, this cause of action is dismissed.
Industrial Code 23-2.3
The State contends that 23-2.3 is factually inapplicable, and Claimant offers
nothing in response. The Court agrees that each of the subdivisions of 23-2.3
are factually inapplicable to the facts of this
Consequently, Industrial Code 23-2.3
cannot support a cause of action under Labor Law 241 (6) under these
circumstances and, as such, this cause of action is dismissed.
Industrial Code 23-5.1
The State argues that 23-5.1 does not apply to aerial baskets and, in any
event, is factually inapplicable to this case. Again, Claimant offers nothing
in response. The Court agrees that 23-5.1 which outlines various requirements
for scaffolds does not apply to aerial baskets in the first instance (compare
definitions contained in Industrial Code 23-1.4 [b]  "aerial basket" versus
23-1.4 [b]  "scaffold"), nor to the facts of this case. Consequently,
Industrial Code 23-5.1 cannot support a cause of action under Labor Law 241 (6)
and, as such, this cause of action is dismissed.
Industrial Code 23-6.1 and 23-6.3
The State points to 23-6.1 (a) which specifically states that "[t]he general
requirements of this Subpart shall apply to all material hoisting
equipment except cranes, derricks, aerial baskets, excavating
machines used for material hoisting and fork lift trucks." (Emphases added).
Claimant has no response. Consequently, neither Industrial Code 23-6.1 nor
23-6.3 can support a cause of action under Labor Law 241 (6) and, as such, these
causes of action are dismissed.
Industrial Code Subpart 23-8
The State directs its argument here to the entire Subpart 23-8 entitled "Mobile
Cranes, Tower Cranes and Derricks". The State argues that a review of this
entire Subpart reveals that an aerial basket was not intended to be included
with cranes and derricks because an aerial basket is not used for hoisting
materials. Here, Claimant has responded and in this Court's view is not
disputing the State's point, but rather arguing that these provisions apply to
the separate crane used at this Project, namely the one crane that was used to
hoist and suspend the steel beam while Claimant and Mr. Reinhardt worked from
the separate aerial basket. In other words, Claimant's theory of liability with
respect to Subpart 23-8 relates to violations of these provisions in the use of
the crane, not the aerial basket. The Court agrees that this Subpart is
relevant in that role only, but not in relation to the aerial basket. That
having been said, the Court will further review the cited provisions to
determine their specificity and applicability to this case.
Industrial Code 23-8.1
The State argues that Industrial Code provisions 23-8.1 (a)-(e); (f) (1)-(5);
and (g) - (n) are factually inapplicable to the facts at hand and Claimant
offers no factual or legal arguments in opposition thereto. The Court agrees.
Claimant does, however, argue that Industrial Code 23-8.1 (f) (6) and (f) (7)
are applicable. Industrial Code 23-8.1 (f) (6) states that "[m]obile cranes,
tower cranes and derricks shall not hoist or carry any load over and above any
person except as otherwise provided in this Part (rule)." Industrial Code
23-8.1 (f) (7) states, in pertinent part, "[n]or shall any person be permitted
to work or pass under a stationary suspended load." Assuming, arguendo, these
provisions contain specific safety provisions sufficient to support a Labor Law
241 (6) cause of action (Jacome v State of New York, 266 AD2d 345, 347),
the State argues these provisions are factually inapplicable. The Court agrees.
Clearly, these provisions were meant to protect workers from injury due to a
falling load while passing or working underneath a suspended load. Here, the
load, e.g., the beam, did not fall, thus failing to implicate these provisions.
Consequently, the Labor Law 241 (6) cause of action based upon Industrial Code
23-8.1, including 23-8.1 (f) (6) and (7), is dismissed.
Industrial Code 23-8.2
The only argument here from Claimant is that this is a sister provision to
23-8.1 and has been deemed to be sufficiently specific to support a Labor Law
241 (6) cause of action. (Claimant's unnumbered Memorandum of Law). Although
this provision has indeed been found to contain specific provisions, the Court
finds each of the subdivisions (a) - (j) to be factually irrelevant to the facts
in this case.
Consequently, Industrial Code
23-8.2 can not support a cause of action under Labor Law 241 (6) and, as such,
this cause of action is dismissed.
Industrial Code 23-8.3 and 23-8.5
Claimant offers no specific arguments addressing either Industrial Code 23-8.3
[Special provisions for tower cranes] or 23-8.5 [Special provisions for crane
operators]. Nevertheless, the Court has reviewed these provisions and finds
they are factually inapplicable to the facts of this case. Consequently,
neither Industrial Code 23-8.3 nor 23-8.5 can support a cause of action under
Labor Law 241 (6) and, as such, these causes of action are dismissed.
Industrial Code 23-9.2
The State correctly asserts that courts have consistently found that 12 NYCRR
23-9.2 (a), (b), and (c) have all been found to contain only general
requirements which do not support a cause of action under Labor Law 241 (6).
(Phillips v City of New York, 228 AD2d 570 [23-9.2 (a)]; Webber v City
of Dunkirk, 226 AD2d 1050 [23-9.2 (b)]; and Armer v General Elec.
Co., 241 AD2d 581, lv denied 90 NY2d 812 [23-9.2 (c)]). Claimant
offers nothing in contradiction. Consequently, Claimant's cause of action under
Labor Law 241 (6) based upon Industrial Code 23-9.2 is dismissed.
Industrial Code 23-9.6
State's motion specifically excludes Industrial Code 23-9.6 (b) (1) from its
focus. The Court agrees that a question of fact exists relative to the
application of this provision to the accident and that this provision remains
viable for trial. With respect to the remaining subdivisions of Industrial code
23-9.6, this Court finds them either general in nature or factually inapplicable
to this case including: (a) equipment inspection; (b) (2) lower ground
controls; (c) driving or moving of aerial basket
(d) truck placement; and (e) (1), (2),
(4) - (7), and (9) - (13). With respect to Industrial Code provision 23-9.6 (e)
(3), the State has indicated its intent to rely upon this provision at trial
which states, in part, that "[b]efore the basket is moved, the operator shall
observe the location of all obstructions and any other hazards which may be in
the vicinity." Additionally, although not specifically addressed by either
party, the Court also finds questions of fact relative to the applicability of
(e) (8) which prohibits a person from exiting the aerial basket under certain
Consequently, the State's motion for summary judgment with respect to Labor Law
241 (6) is granted, with the exception of Industrial Code provisions 23-9.6 (b)
(1); (e) (3) and (e) (8).
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion for summary judgment, Motion No. M-65690, is GRANTED IN PART; Claimant's
cross-motion for summary judgment, Motion No. CM-65721, is DENIED; and Claim No.
105405 is DISMISSED IN PART in accordance with the foregoing. The previously
scheduled trial set for October 30, 2002 will proceed as scheduled on the
remaining cause of action, namely Labor Law 241 (6) and Industrial Code 23-9.6
(b) (1); (e) (3) and (e) (8).