New York State Court of Claims

New York State Court of Claims

REYNOLDS v. NEW YORK STATE THRUWAY AUTHORITY, #2002-028-056, Claim No. 105132, Motion Nos. M-64777, CM-65083


Cross motions for summary judgment on 240(1) claim denied. Questions of fact whether Claimant fell within meaning of statute. Summary judgment granted in part of 241(6) claim for reliance on nonspecific Industrial Code sections.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the parties cross motions for summary judgment:

1. Notice of Motion and supporting Affirmation of Peter Catalano, Esq. filed on February 25, 2002 (Catalano Affirmation), with annexed Exhibits 1-4

2. Affidavit of Trista Reynolds, sworn to November 27, 2000 (Reynolds Affidavit)

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 (Catalano Reply)

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 Affirmation, ¶ 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[1] 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:
1. All contractors and owners * * * who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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.

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., 267 AD2d 555; compare Striegel v Hillcrest Heights Dev. Corp., 266 AD2d 809 [worker prevented from falling off roof by nails] and Moore v Elmwood-Franklin School, 249 AD2d 923 [while straddling the peak of the roof worker slipped and slid several feet suffering burns from tar he was carrying] ).[2] 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 (cf., Misseritti v Mark IV Construction Co., 86 NY2d 487, 491, rearg denied 87 NY2d 969). Thus, a most material issue of fact remains.

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., supra, 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. Assocs., 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 sections[3]. 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) (see, 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, Biggs v State of New York, New York State Thruway Authority, and New York State Canal Corporation, 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, supra, Defendant has failed to carry its burden (see, Ayotte v Gervasio, 81 NY2d 1062, supra) entitling it to summary judgment[4].

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.

September 30, 2002
Albany, New York

Judge of the Court of Claims

[1] The relationship of Liberty and E & D, and ultimately which entity actually employed Claimant on the day of the accident, remains unclear but is not relevant to disposition of the instant motions.
[2] The Court notes Striegel and Moore are Fourth Department cases, each with dissenting opinions.
[3] Defendant has appended to its papers as Exhibit "B" the Verified Bill of Particulars filed in the dismissed Claim No. 101868 while Claimant has attached as Exhibit "4" the Verified Bill of Particulars served in the instant Claim.
[4] From the limited information available to the Court on this motion, the Court could not conclude that any of the cited sections were inapplicable.