3. Notice of Cross-Motion filed April 19, 2002 and Affirmation of F. Douglas
Novotny, Esq. (Novotny Affirmation) with annexed Exhibits A-C.
4. Reply Affirmation of Peter Catalano, Esq. filed April 29, 2002
Filed papers: Claim, filed October 29, 2001. Verified Answer.
This Claim arose on November 7, 1999, when Claimant Trista Reynolds was injured
while working on a bridge that carries the New York State Thruway over the
Catskill Creek in Greene County, New York. The project on which Claimant was
working – "Painting the Thruway bridge over the Catskill Creek" –
was the subject of a contract between the New York State Thruway Authority
("the Authority") and Liberty Maintenance Company, Inc. ("Liberty") (Catalano
, ¶ 6; Exhibit 1 [E]). The submissions currently before the
Court indicate that, at the time she was injured, Claimant was employed by
either Liberty or E & D
and was performing
work called for under the contract noted above. Specifically, Claimant was
vacuuming steel grit from a floor which had been erected underneath the bridge.
The floor consisted of a chain link fence strung between the bridge's arch
support system (see
, Exhibit 1[G]) which was then covered with a tarp.
Given the physical configuration of the bridge, this floor was on an incline.
The vacuum was located on a truck which was parked on the bridge deck. A hose
approximately six inches in diameter and 250 feet in length extended from the
truck to Claimant. As Claimant vacuumed the tarp surface, she lost her balance
and fell backwards down the inclined floor. Her fall was stopped by other
equipment located on the floor. In this sequence of events, Claimant lost
control of the vacuum hose and her left arm was sucked into the hose.
Co-workers came to her aid and broke the suction thereby freeing Claimant's arm.
The Claim sets forth causes of action based on Labor Law §§ 200, 240
and 241. The Claimant has moved for partial summary judgment only on her
Labor Law § 240 Claim, while Defendant has cross-moved for summary judgment
on both the Labor Law § 240 and § 241(6) causes of action.
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 240(1)
Labor Law §240, "Scaffolding and other devices for use of employees",
provides in pertinent part:
The purpose of Labor Law § 240 (1) is to protect workers by placing the
"ultimate responsibility" for work site safety upon the owner and general
contractors, instead of on the workers themselves (see, Rocovich v
Consolidated Edison Co., 78 NY2d 509, 513). The section imposes absolute
liability on owners, contractors and their agents for any breach of the
statutory duty which has proximately caused injury (see, id.).
However, the statute is not all encompassing; rather, it covers only those
hazards "related to the effects of gravity where protective devices are called
for ... because of a difference between the elevation level of the required work
and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514,
supra). In the Third Department, the court has stated that Rocovich and its
progeny have limited the statute's reach to such specific gravity-related
accidents as falling from a height or being struck by a falling object
(see, White v Sperry Supply & Warehouse, 225 AD2d 130, 132,
Moutray v Baron, 244 AD2d 618).
In the first instance, there can be no question the surface on which Claimant
was working when she was injured was temporary in nature or was the "functional
equivalent of a scaffold" (see, Craft v Clark Trading Corp., 257 AD2d
886, 888; c.f., Richardson v Matarese, 206 AD2d 353; Wescott v Shear, 161
AD2d 925, appeal dismissed 76 NY2d 846).
The question of whether Claimant "fell" within the case law interpretation of
the statute is at the crux of each parties' argument. Defendant argues that
Claimant's accident was a slide along the tarp floor and thus does not
constitute a fall under §240(1). Claimant counters that she used the word
fell or variations thereof "11 times" just in the snippet of transcript relied
upon by Defendant (Catalano Reply, ¶ 2). Defendant's reliance on those
cases in which the courts found variations of sliding down a slope not to be
actionable (see, Williams v White Haven Mem. Park, 227 AD2d 923;
Doty v Eastman Kodak Co., 229 AD2d 961, lv dismissed in part and denied
in part 89 NY2d 855; and Gielow v Rosa Coplon Home, 251 AD2d
970) are readily distinguished as each case did not involve a scaffold
but rather an earthen slope.
The Court has read and reread Claimant's EBT transcript and can not conclude
as a matter of law how Claimant left her feet, the distance she might have
fallen before regaining contact with the tarp, or where and how in this sequence
her injuries occurred (see
, Grant v Reconstruction Home, Inc
AD2d 555; compare Striegel v Hillcrest Heights Dev. Corp
AD2d 809 [worker prevented from falling off roof by nails] and Moore v
, 249 AD2d 923 [while straddling the peak of the roof
worker slipped and slid several feet suffering burns from tar he was carrying]
Without observing Claimant's testimony
firsthand, the Court is unable to determine whether the injury producing event
is the type of special elevation-related hazard to which § 240(1) applies
., Misseritti v Mark IV Construction Co.
, 86 NY2d 487, 491,
87 NY2d 969). Thus, a most material issue of fact
Defendant's further argument that Claimant's "slide" was not an elevation risk
but an "ordinary and usual peril"(Novotny Affirmation, ¶ 6) relies on
Claimant's EBT testimony that workers would "slip all the time" (Id.). In this
Court's view, this testimony raises the question whether the safety device
utilized provided proper protection within the meaning of Labor Law §
240(1) (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 501
[whether scaffold served its core purpose]; cf, Olsen v State of New
York, __ AD2d__, 745 NYS2d 253 [competent evidence established injury
occurred not from fall], and hence a question of fact (Beesimer v Albany
Ave./Rte. 9 Realty, 216 AD2d 853, 854, [omitted]; see, Briggs v
Halterman, 267 AD2d 753, 754-755; Nephew v Barcomb, 260 AD2d 821,
823) which likewise precludes summary judgment.
Labor Law § 241(6) CLAIM
To assert a prima facie cause of action pursuant to Labor Law § 241 (6), a
claimant must allege that the defendant violated a rule or regulation of the
Commissioner of Labor that sets forth a specific or concrete standard of
conduct as opposed to a general reiteration of common-law principles (Ross v
Curtis-Palmer Hydro-Elec. Co.
, at 501-505; Narrow v
Crane-Hogan Structural Sys
., 202 AD2d 841, 842). Furthermore, even if a
given regulation sets forth a " 'concrete specification' ", the regulation must
be applicable to the set of facts presented (McGrath v Lake Tree Vil.
., 216 AD2d 877, 878; Knudsen v Pentzien, Inc
., 209 AD2d 909,
911). Contrary to Defendant's assertion that Claimant has failed "to articulate
a single specific standard of conduct addressed by the Industrial Code" (Novotny
Affirmation, ¶ 8) Claimant has alleged that Defendant violated Industrial
Code 12 NYCRR §§ 23-1.5, 23-1.7, 23-1.15, 23-1.16 and 23-5.1 as well
as various rules and regulations of the Occupational Safety and Health
Administration (OSHA) standards (Catalano Affirmation
, Exhibit 4,
¶¶ 14 and 30 [Claimant's Verified Bill of Particulars]). Defendant is
correct that violations of OSHA standards do not provide a basis for liability
under Labor Law § 241 (6) (see
, McGrath v Lake Tree Vil. Assocs.,
216 AD2d 877 supra, 878
; McSweeney v Rochester Gas & Elec. Corp
216 AD2d 878, lv denied 86 NY2d 710). Although Claimant's Reply Affirmation is
silent as to the Defendant's arguments regarding the 241(6) cause of action, the
Court does not view such as a concession (Cf.
, Olsen v State
of New York
, Ct Cl, Lebous, J., August 16, 2001, Motion #M-63222 Claim No.
101274, UID No. 2001-019-549; rev'd on other grounds
, __AD2d __, 745
NYS2d 253, supra
), particularly where, as here, Defendant's argument is
based, erroneously, upon the lack of citation to specific Industrial Code
. Of the provisions cited by
Claimant, §23-1.5 has been held to contain only general standards and thus
does not provide a basis for liability under Labor Law § 241 (6)
, McGrath v Lake Tree Vil. Assocs
., 216 AD2d 877; Stairs v
State St. Assocs
., 206 AD2d 817, 818 [§23-1.5]). Likewise, §
23-5.1(f), a subpart of the general provisions for all scaffolds, lacks the
necessary degree of specificity (see, Moutray v Baron
, 244 AD2d 618,
619). As to §§ 23-1.7, 23-1.15 and 23-1.16 (see
v State of New York, New York State Thruway Authority, and New York State
, Ct Cl, Fitzpatrick, J., June 5, 2001, Motion No. M-62319,
UID No. 2001-018-088, [§§ 23-1.7, 23-1.16, and 23-5.1 arguably
contain several subsections which have specifications sufficient to sustain a
cause of action under Labor Law Section 241(6)]; Doyne v Barry, Bette &
Led Duke Inc
., 246 AD2d supra 756, [§ 23-1.7]; Olsen
Defendant has failed to carry its burden (see, Ayotte v Gervasio
, 81 NY2d
) entitling it to summary
In sum, the Defendant's motion for summary judgment on Labor Law 241 (6) is
granted with respect to Industrial Code §§ 23-1.5 and 23-5.1(f) and
the Code of Federal Regulations, but denied as to Industrial Code 23-1.7,
23-1.15 and 23-1.16. The parties' respective motions for summary judgment on
the Labor Law § 240 claim are denied. Parenthetically, the Court notes
that Claimant's Labor Law § 200 cause of action remains, as neither party
moved with respect thereto.