New York State Court of Claims

New York State Court of Claims

O'KEEFE v. THE STATE OF NEW YORK, #2002-028-013, Claim No. 98412, Motion Nos. M-64073, CM-64195


Case Information

GREGORY MESSER, Bankruptcy Trustee, as successor in interest to ALAN O'KEEFE
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:
ROSENBERG, MINC, FALKOFF & WOLFF LLPby: Gary Silverstein, Esq.
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment and Claimant's cross-motion for leave to amend his Bill of Particulars:

1) Notice of Motion and Affirmation of Eugene T. Boule, Esq. (Boule Affirmation) filed September 19, 2001 with annexed Exhibits A-D;

2) Notice of Cross-Motion and Affirmation in Opposition/Support of Gary Silverstein (Silverstein Affidavit) filed October 19, 2001 with annexed Exhibits 1-4;

3) Opposition/Reply Affirmation of Eugene T. Boule, Esq. (Boule Reply) filed November 7, 2001

Filed Papers: Claim, Verified Answer, Memorandum Opinion and Order of Hon. Leonard Silverman, M-56808 filed May 12, 1998.

By Memorandum Opinion and Order filed May 12, 1998 (Boule Affirmation, Exhibit C) the now retired Hon. Leonard Silverman granted Claimant, Alan O'Keefe permission to late file a claim pursuant to §241(6) of the Labor Law and alleged violations of the Industrial code arising from injuries sustained by Claimant when he fell from a flatbed truck after being struck by steel sheeting. Claimant's deposition was taken on October 11, 2000. A Note of Issue and Certificate of Readiness was filed by Claimant on July 31, 2001. Thereafter, Defendant moved for summary judgment asserting that the four sections of the Industrial Code (12 NYCRR §23, et. seq.) identified by claimant in his Bill of Particulars (Boule Affirmation, Exhibit D) are inapplicable to the facts at bar (Boule Affirmation, ¶ 8). Claimant has opposed the motion specifically addressing only Industrial Code section 23-2.3 and by cross moving to supplement his Verified Bill of Particulars to allege violations of Industrial Code §§23-8.1(f)[1] and 23-8.2(3).

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. At the time of the accident, Claimant was working for a contractor hired by the Defendant to perform work along the Long Island Expressway. The sheet of steel which struck Claimant was being hoisted by a "70-ton truck crane" (Claimant's Deposition, pp.14-15) onto the flatbed truck. There were no safety or tag lines in use (Id, p. 37). The steel sheet, which measured approximately four feet in width and thirty to forty feet in length, had been used to support earthen walls so as to permit the excavation work necessary for the forms and footings for a bridge. As the steel sheet was hoisted, it began to spin towards Claimant, who was standing on the rear of the flatbed truck. Claimant, who believed the steel sheet would swing onto the expressway, braced himself to stop the steel sheet, but was unsuccessful. The force knocked Claimant off the flatbed truck. Claimant struck the concrete barrier which had been put in place to separate the work area from the expressway and came to rest between the barrier and the flatbed truck.

The Court will first address Claimant's cross-motion seeking permission to supplement his Verified Bill of Particulars to add two additional provisions from the Industrial Code in

support of his Labor Law §241 (6) cause of action. Motions for leave to amend or supplement bills of particulars are governed by the same standards as those applying to motions to amend

pleadings under CPLR 3025(b) (Kerlin v Green, 36 AD2d 892). CPLR 3025 [b] provides that a party may amend his pleadings at any time by leave of the court and that leave shall be freely given on such terms as may be just. While a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant (see, Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957, 959; Scarangello v State of New York, 111 AD2d 798).

Prior to filing the Note of Issue, claimant had the ability to amend his Bill of Particulars once as of course (CPLR 3042 [b]). One year elapsed between the taking of Claimant's deposition and the filing of the cross-motion to amend the Bill of Particulars. While claimant's counsel asserts the reason for the delay was Defendant's numerous counsel changes (Silverstein Affirmation, ¶ 4[2]), it is clear to the Court the impetus to amend can be found in Defendant's summary judgment motion. While the Court finds the delay to be substantial and the proffered reason for the delay inadequate, those factors alone are not determinative of the motion (see, Kurnitz v Croft, 91 AD2d 972, 973). Here, the State will not be prejudiced by the relief sought since it was apprised at the outset of the facts and the nature of the claim. Claimant's proposed amendment involves the same transaction and set of facts; the gist of this claim remains the improper movement of the steel sheet (see, Plattsburgh Distrib. Co. v. Hudson Valley Wine Co., 108 AD2d 1043, 1044). Moreover, the Court does not view the addition of the Industrial Code sections as adding causes of action to the Claim (see, Orros v Yick Ming Yip Realty, Inc., 258 AD2d 387, 388 [amendment permitted where alleged violations of rules, and/or regulations merely amplify and elaborate upon facts and theories already set forth in the original bill of particulars and raise no new theory of liability]).

The Court must make one further inquiry before granting leave to amend and that is to determine whether the amendment "clearly lacks merit" (Perrini v City of New York, 262 AD2d 541, 542; Nasuf Construction Corp. v State of New York, 185 AD2d 305). The proposed amendments invoke sections of the Industrial Code applicable to "mobile cranes," which sections the Defendant argues are inapplicable because there is no support in either the record or in Claimant's application from which the Court could find a "mobile crane" was in use. Claimant's deposition testimony that a "70-ton truck crane" was in use (see, supra) is more probative than the contrary opinion of Defendant's counsel, and as far as the Court can discern on this record, the word truck certainly implies mobile. Thus, the Court is satisfied that the amendment to include §23-8.2(3), which requires the use of tag or restraint lines - safety features Claimant has testified were lacking - does not clearly lack merit, and therefore will be permitted. The Court does not reach the same conclusion with regard to the inclusion of §23-8.1(f). Notwithstanding Claimant's testimony that there was a safety officer present, there is no indication whatsoever in this record to suggest the cited provisions were violated[3], let alone that such violations were a proximate cause of this accident (see, Brugnano v Merrill Lynch & Company, Inc., 216 AD2d 18, 19; Biggs v State of New York, Ct Cl, [Fitzpatrick, J.] Motion No. M-62319, UID #2001-018-088, June 5, 2001[4], [cause of action lacked appearance of merit due to a lack of specificity and a limited description of how the accident occurred]).

The Court now turns to Defendant's motion for summary judgment. The rule governing summary judgment is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Labor Law section 241(6) imposes upon all contractors, and owners regardless of control or supervisory obligations, the duty to provide reasonable and adequate protection and safety to persons employed performing construction, excavation or demolition. This statute however is not self-executing and requires demonstration of a violation of specific administrative rules promulgated by the Commissioner of the Department of Labor (Ross v Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 501-505;) The specific regulations relied upon must set forth clear specifications to be complied with, as opposed to general safety standards. (Ross v Curtis-Palmer Hydro Elec. Co., supra at 505; Narrow v Crane-Hogan Structural Systems, Inc., 202 AD2d 841, 842). Defendant argues that Industrial Code §§23-1.15, 23-1.16 and 23-6.1(c),(e), (g) and (h) are not applicable to the instant Claim. Section 23-1.15 sets standards for the construction of safety railings, and section 23-1.16 sets standards for "[s]afety belts, harnesses, tail lines and lifelines." Defendant has established to the Court's satisfaction, that there was no safety railing on the flatbed truck and that Claimant was not provided with a safety belt, harness, tail line or lifeline, thereby rendering those sections inapplicable here (see, Avendano v Sazerac, Inc., 248 AD2d 340, 341; Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884). Similarly, § 23-6.1 specifically exempts cranes from its scope. As there is no dispute that a crane hoisted the steel sheet which struck claimant, subsections (c),(e), (g) and (h) are inapplicable to this Claim (see, Smith v Homart Development Company, 237 AD2d 77). Having satisfied its burden, and with no opposition from Claimant to raise a material question of fact (see, Warren v State of New York, Ct Cl [Lebous, J.], Claim No. 84086, Motion No. M-63924, UID #2001-019-575, [November 26, 2001]), Defendant is entitled to summary judgment with regard to these sections.

Defendant next argues that §23-2.3, captioned "Structural steel assembly" is also inapplicable to the facts of this Claim. In support of its position, Defendant's counsel offers his opinion that the work being performed does not constitute "structural steel" (Boule Affirmation, ¶ 13). The Court is not persuaded by counsel's affirmation alone that the construction activity on the date in question is outside the scope of the cited Industrial Code provision. Moreover, as Claimant points out in opposition, §23-2.3(c) provides "Tag lines. While steel panels or structural steel members are being hoisted, tag lines shall be provided and used to prevent uncontrolled movement of such panels or members.[emphasis added]" Defendant in its moving papers focused on the words "structural steel" and ignored the phrase "steel panels" in the regulation. In reply, Defendant now argues, again from its counsel's affirmation, that the "steel sheet" which struck Claimant is not a "steel panel" as contemplated by the regulation. The Court does not discern such a difference on this record and accordingly finds defendant has failed to sustain its burden.

For the foregoing reasons, Claimant's cross-motion to supplement his Bill of Particulars is GRANTED in part and DENIED in part. Claimant shall serve and file a supplemental Bill of Particulars, consistent with this decision and order, within fifteen (15) days of the filed date of this decision and order.

Defendant's motion for summary judgment is GRANTED with respect to 12 NYCRR §§ 23-1.15, 23-1.16 and 23-6.1(c),(e), (g) and (h) and DENIED with respect to 12 NYCRR §23-2.3(c).

The Court shall initiate a telephone conference on April 9, 2002 at 11:00 a.m. to determine what additional discovery, if any, Defendant shall require and to issue a scheduling order for same.

March 11, 2002
Albany, New York

Judge of the Court of Claims

[1] The proposed supplemental verified Bill of Particulars (Silverstein Affirmation, Exhibit 3) seeks to add §23-8.1(f) and §23-8.2(3) while the moving papers specifically address §§23-8.1(f) (1) and (2) as well as §23-8.2(3).
[2] The Silverstein Affirmation lacked numbered paragraphs. The Court therefore has numbered the paragraphs.
[3] Claimant's counsel would only venture that these sections "may have been violated" (Silverstein Affirmation, ¶ 15)
[4] Unreported Court of Claims decisions are available in a searchable database which can be accessed from the Court's website -