New York State Court of Claims

New York State Court of Claims

SCHUTT v. THE STATE OF NEW YORK, #2002-019-568, Claim No. 105405, Motion Nos. M-65690, CM-65721


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 in part; Claimant's cross motion for summary judgment is denied; claim dismissed in part.

Case Information

W. JAMES SCHUTT The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
THE ROTHSCHILD LAW FIRM, P.C.BY: Martin J. Rothschild, Esq., of counsel
Defendant's attorney:
BY: Mlynarski & Cawley, P.C.Theodore J. Mlynarski, Jr., Esq., of counsel
Third-party defendant's attorney:

Signature date:
September 19, 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 common-law negligence and Labor Law 200, 240 (1), and 241 (6).[1] Claimant opposes the motion and cross-moves for summary judgment as well. This matter is scheduled for trial in the Binghamton District on October 30 & 31, 2002.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed December 28, 2001.
  2. Notice of Motion No. M-65690, dated August 22, 2002, and filed August 23, 2002.
  3. Affirmation of Theodore J. Mlynarski, Jr., Esq., in support of motion, dated August 22, 2002, with attached exhibits.
  4. Memorandum of Law in support of motion, dated August 22, 2002.
  5. Notice of Cross-Motion No. CM-65721, dated August 27, 2002, and filed August 28, 2002.
  6. Affirmation of Martin J. Rothschild, Esq., in support of cross-motion and in opposition to motion, dated August 27, 2002, with attached exhibits, and various deposition transcripts.
  7. Memorandum of Law in support of cross-motion, dated August 27, 2002.
  8. Letter from Theodore J. Mlynarski, Jr., Esq. to the Court, in opposition to cross-motion and in support of motion, dated September 4, 2002, and received by the Court via fax on September 4, 2002.

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 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. (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 ed]).

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 what 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 Project.[2] 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.[3] (State's 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 [1]). 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 AD2d 392).

By way of comparison, research has revealed only a few cases dealing specifically with aerial lifts. For instance, in Moore v Metro N. Commuter R. R., 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 from Moore. 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 York, 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. 2001-016-002][4]). Judge Marin granted summary judgment to the claimant on Labor Law 240 (1). However, Salzler and Anarumo 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 denied.

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 of Particulars.[5] 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 dismissed.

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 bar.[6] 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 case.[7] 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] [2] "aerial basket" versus 23-1.4 [b] [45] "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.[8] 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 truck;[9] (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 circumstances.[10]

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).

September 19, 2002
Binghamton, New York

Judge of the Court of Claims

The State's motion is not directed to Claimant's cause of action based upon Labor Law 241 (6) and Industrial Code section 23-9.6.
Due purely to administrative caseload issues, the State hired outside companies to manage the inspection of various State projects, including this project. (State's Exhibit J, pp 12-13).
Other depositions were submitted from Christopher Giles, the State's construction supervisor for the Project at the time of this accident. Mr. Giles did not offer any testimony addressing the issue of the State's supervision or control of this Project, and could not even testify with any certainty about the frequency of his own personal visits to the site. (State's Exhibit J). The parties also offered the deposition testimony of Daniel Ryan, the State's Engineer in Charge of the Project. The substance of Mr. Ryan's testimony related more to Mr. Gardels' responsibilities at the work site, rather than his own which seemed to include spending a substantial amount of time in the field office on the opposite side of the work site, along with some general safety checks every other day. (State's Exhibit K, pp 16 & 27).
Unreported Decisions from the Court of Claims are available via the Internet at
The State does not move against Industrial Code 23-9.6 (b) (1).
The subdivisions of Industrial Code 23-1.7 include: (a) overhead hazards; (b) falling hazards; (c) drowning hazards; (d) slipping hazards; (e) tripping and other hazards; (f) vertical passage; (g) air contaminated or oxygen deficient work areas; and (h) corrosive substances.
The subdivisions of Industrial Code 23-2.3 are: (a) placing of structural members; (b) holing or cutting of structural steel members; (c) tag lines; (d) erection of lintels; and (e) tandem loads.
The subdivisions of 23-8.2 are entitled as follows: (a) inspection; (b) footings and outriggers; (c) hoisting the load; (d) mobile crane travel; (e) counterweights for mobile cranes; (f) mobile crane construction; (g) mobile crane capacity charts; (h) boom angle indicator; (I) unauthorized operation; and (j) operation of a mobile crane with a demolition ball.
Parenthetically, the Court notes that although Claimant and his co-workers were continually asked about training on the aerial basket, Industrial Code 23-9.6 (c) (1) which addresses training, has been found general and unable to support a Labor Law 241 (6 ) claim. (Wilke v Communications Constr. Group, 274 AD2d 473).
Both Claimant and Mr. Reinhardt testified at their respective depositions regarding the possibility that Mr. Reinhardt exited the aerial basket at the moment of this accident.