New York State Court of Claims

New York State Court of Claims

DOUVARTIDIS v. THE STATE OF NEW YORK, #2002-030-537, Claim No. 104450, Motion Nos. M-65212, CM-65506


Claim dismissed. State University Construction Fund "owner" under §240(1) Labor Law, not State of New York

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 27, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 10 were read and considered on Defendant's motion to dismiss the within Claim for a lack of subject matter jurisdiction, and Claimant's cross-motion for summary judgment, both marked fully submitted on August 19, 2002:
1,2,3 Notice of Motion, Affirmation in Support of Jonathan R. Sennett, Esq., Attorney for Defendant, Affidavit in Support of William K. Barczak, and accompanying exhibits.

4,5,6 Notice of Cross-Motion, Affidavit in Support of Cross-Motion and in opposition to Motion by Fotios Douvartidis; Affirmation in Opposition to Motion and in Support of Cross-Motion by Elan Wurtzel, Esq., attorney for Claimant, and supporting exhibits

7 Affirmation in Reply and in Opposition to Cross-Motion by Jonathan R. Sennett, Esq.

8 Reply Affirmation by Elan Wurtzel, Esq.

9,10 Filed Papers: Claim, Answer.

After carefully considering the papers submitted and the applicable law the motions are disposed of as follows:
Fotios Douvartidis, the Claimant herein, alleges in Claim Number 104450 that the State of New York was negligent and failed to provide a safe work place in violation of Labor Law §§200, 240,and 241(6), when he was injured on or about April 21, 2000 while working as a laborer at a construction site at the State University of New York College at Purchase (hereafter SUNY). He states that he "...was injured when metal piping that had been stored in a trailer... fell, striking him and crushing his body, causing injuries." [¶4; Claim No. 104450 filed June 21, 2001]. Claimant's employer at the site was Positive Electrical Associates, Inc., (hereafter Positive Electrical).

The Claim itself provides that the "State of New York, its agents, servants, employees, independent contractors and subcontractors were negligent, careless and reckless in their construction, management, control, inspection, maintenance and operation of the aforesaid construction site and work." [¶6]. As amplified in his Bill of Particulars, "[t]he following are the acts and/or omissions constituting the defendant's negligence: Failed to erect, furnish, place and position ladders, scaffolding, ...and other devices so as to give property (sic) protection to plaintiff (sic)[1]; failed to properly manage and control the Premises, its appurtenances, equipment, ladders; in failing to provide plaintiff with a safe place to work as required by law, in furnishing plaintiff with an unreasonably dangerous, defective and unsafe equipment to perform his work; in failing to [provide], erect, furnish, place and/or position ladders, scaffolding, ...crawling boards, safety belts and other devices so as to give property (sic) protection to plaintiff; failing to construct, shore, equip, guard, arrange, operate and condut (sic) the construction work in the premises so as to provide reasonable and adequate protection and safety to plaintiff; failed to properly store building materials in a safe and orderly manner; failed to properly store building materials so that they were stable under all conditions; failed to properly store building materials and equipment so that the weight of said materials and equipment was properly and adequately supported by the capacity of the floor, platform or scaffold; failed to properly store building materials and equipment such that said materials and equipment were not stored close to any edge of a floor, platform or scaffold." [Affirmation in Opposition to Motion and in Support of Cross-Motion, Exhibit "D", Bill of Particulars[2] ¶3].

Claimant more specifically states that the work he "...performed on this job site was all outdoors, building ditches and placing pipes in the ditches. This work was not done inside any buildings on the college campus, but was done all outdoors." [Claimant's Affidavit in Support, ¶3 ]. He states that "[a]t the time of the accident, I was instructed to place boxes of pipes in ...[a storage trailer]....[that] had been delivered to the job site by truck. The boxes were approximately 7-8 feet long and were approximately 3 inches by 3 inches in depth and width." [Ibid, ¶5] Claimant states he was " the boxes from the truck and placing them in the trailer." [Id]. As Claimant stacked the boxes on top of each other toward the front of the trailer, stacks were created that were almost 6 feet tall: the Claimant's approximate height. [Ibid, ¶ 6]. He completed a stack toward the front of the trailer, and was in the process of making a second pile of boxes further inside the trailer, when he left to get more boxes, and "...the first pile of boxes began to move, shift and then fell over onto my body, causing me to fall." [Ibid, ¶ 7]. Claimant states that " devices, braces, equipment or materials that were used so as to support the pile of boxes and prevent them from falling over" were present. [Ibid, ¶ 8].

Positive Electrical entered into a contract with the State University Construction Fund (hereafter Fund ), on or about February 16, 2000 to "Rehabilitate Fire Alarm System at the State University of New York at Purchase (SUCF Project No. 29249)." [Defendant's Exhibit "B"]. Within the contract, Positive Electrical is required to indemnify various agencies through insurance policies, including the Fund, the State University of New York and the State of New York. [Ibid, ¶ 5.06 (1) (d), Page A-23].

A title search of the property where the alleged accident occurred shows the recorded history of title to the property.[Claimant's Exhibit "E"] The title company certifies that the portion designated as part of Lot 3 in Block 661 on the Tax Map of the Town of Harrison is owned by the People of the State of New York on behalf of the State University of New York. Claimant's assertion that the area where he was performing his work was within the Lot described is not contradicted by Defendant.

In an Affidavit in Support of Defendant's motion, William K. Barczak, Associate Counsel for the Fund, opines that the alleged accident occurred within the contract limits of the Fund's contract with Positive Electrical. He reiterates that the proper Defendant in a claim involving personal injury at a Fund construction site are the Fund and the contractor as the entities having the "care, custody and control of the project site during the course of construction." [Defendant's Affirmation in Reply and Opposition to Cross-Motion, Exhibit "E", ¶ 6 and 7].
Defendant argues that this Court does not have jurisdiction over the claim because the State of New York is not a proper party, in that the real party in interest to be sued is the Fund, as the "owner" under Labor Law considerations, and an entity against whom a suit may be brought only in the New York State Supreme Court. See, §373-a Education Law.

Labor Law §§200, 240(1) and 241(6)
Labor Law §200 codifies the common-law duty of an owner or contractor to exercise reasonable care in providing workers a safe place to work. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993); See, also, Barone v State of New York, (Ct Cl), Lebous, J. July 2, 2001, UID No. 2001-019-538 ( "Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200...(citation omitted)." Comes v New York State Elec. & Gas Corp., supra.

§240(1) Labor Law - the so-called Scaffold Law - imposes strict liability and requires "...[a]ll contractors and owners and their agents...[with some exceptions] in the erection, demolition, repairing, altering painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to 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 work being done should contain an elevation related risk, and the injury suffered by the worker should be associated with that risk.

Strict liability under Labor Law §241(6) attaches if the owner or contractor has violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct - as opposed to a general statement of common law principles. Violation of that specific standard must be a proximate cause of the accident. Barone v State of New York, supra; See, generally, 12 NYCRR §23-1.1 et seq.
The Fund is a public benefit corporation created by an act of the Legislature to assure that the necessary buildings, dormitories and other facilities needed by the State University of New York are ready for instructional purposes when needed and scheduled. [ L.1962, c.251 ]. The Fund was created to "provide academic buildings, dormitories and other reduce the time lag between determination of need for such facilities and actual occupancy thereof, to expedite the construction, acquisition, reconstruction, rehabilitation or improvement of such facilities and to assure that the same are ready for the purposes intended when needed...." §372 Education Law.

Among the statutory powers of the Fund - indicated as powers in addition to those conferred elsewhere in the article - is the power "...[t]o accept jurisdiction over and to hold, use and improve, in accordance with such terms and conditions as the Fund and the state university shall determine, any or all real property acquired by the state university trustees in the name of the state for state university purposes, together with such rights and privileges as may be incidental and appurtenant thereto...." §373(6) Education Law. The Fund may "...sue and be sued...." [See, §373(1) Education Law] however, the "...state supreme court shall have exclusive jurisdiction of any action, where the amount sought to be recovered, exclusive of interest and costs, exceeds ten thousand dollars, brought by or against or involving the fund...." §373-a Education Law.

Education Law §355 (2)(a) provides that trustees of the state university are empowered to acquire real property by many means, including purchase or appropriation, in accordance with the provisions of Education Law §307. It is pursuant to §307 that the trustees may acquire real property for state educational purposes to be held by the people of the State of New York. That property - "...title to which shall be taken in the name of and be vested in the people of the State of New York...." - is the property upon which the Fund exercises some of the general powers and duties listed in §373 Education Law, including the powers referred to above to "...accept jurisdiction over and to hold, use and improve...." it. §373(6) Education Law.

That the Fund is a distinct entity, separate from the State, was clearly stated by the Court of Appeals. Grace v State University Construction Fund, 44 NY2d 84, 89-90 (1978). The Court determined that certain statutes allowing adjustment of public construction contracts awarded by the State to reflect the increased cost of petroleum byproducts as a result of the energy crisis did not apply to state construction fund contracts. Thus the plaintiffs, who were successful bidders for construction work to be performed at two different state university campuses, sought adjustments to their contracts with the fund but were precluded. The Court of Appeals said: "The mere fact that the Fund is an instrumentality of the State, and as such, engages in operations which are fundamentally governmental in nature does not inflexibly mandate a conclusion that it is the State or one of its agencies for purposes of chapters 944 and 945...(citations omitted). Instead, a particularized inquiry into the nature of the instrumentality and the statute claimed to be applicable to it is required. In the context of this case, if the statutes creating the Fund and empowering it to let its contracts (Education Law, art.8-A) imbue it with such a degree of identity as to be considered an integral part of the State qua State, the provisions of chapters 944 and 945 of the Laws of 1974 are applicable to the Fund as it would be an agency of the State. On the other hand, if its enabling act distinguishes Fund contracts from those let by the State or its agencies, and in so doing, distinguishes the Fund sharply from an agency which is merely an alter ego of the State, then the statutes at issue here are inapplicable to it....(citation omitted)." Grace v State University Construction Fund, supra, at 88.[3]

Research has not disclosed any cases in the Court of Claims[4] involving the Fund and the workplace safety statutes of the Labor Law, although mention has been made, albeit obliquely, of the difficulties that might be encountered should a claimant frame his claim to implicate the Fund. For example, in an unreported decision of the Court of Claims, involving a claim for injuries allegedly suffered when Claimant was struck by a glass door in the science building of the State University Campus at Oneonta, Judge Hanifin wrote about the position of the Fund vis- à-vis the State of New York. Schauer v State of New York, Claim No. 91876, Hanifin, J., April 30, 1997. Claimant had originally named both the State of New York and the State University of New York at Oneonta as defendants. Two theories were advanced for the imposition of liability. The first was that "...the door stuck or was difficult to open and that therefore the contact between...[Claimant's] body and the door made it more likely that the glass door would shatter....", essentially a claim that the defendant negligently failed to properly maintain the door. The second theory was that the door was negligently designed or constructed, in that it did not comply with safety standards in effect at the time it was installed. The Court noted that the "...Science Building was designed and constructed under the direct supervision and control of the State University Construction Fund...."and, after citing to §373-a Education Law, concluded that the Court of Claims did not have jurisdiction to hear that portion of the claim alleging negligent design and/or construction.
In a more recent decision involving a claimant falling off a curb on a walkway at another state university, the Court of Claims addressed parenthetically the nature of the Fund. Bradt v State of New York, (Ct Cl) Hanifin, J., May 5, 2000, UID# 2000-004-004 ( The court noted that because the claim involved only allegations that the state had failed to maintain the walkway safely, the "jurisdiction morass" of a claim alleging a construction defect, and the need to pursue the Fund in State Supreme Court, was avoided.[5]

Courts other than the Court of Claims have considered Labor Law claims implicating the Fund. For example, in Fitzgibbons v State University Construction Fund, 177 AD2d 1033 (4th Dept 1991), although there is no discussion in the appellate division decision of the underlying lawsuit alleging a violation of Labor Law §241(6), it was the Fund against whom the lawsuit was brought - not the State of New York - and the action was commenced in State Supreme Court.

Additionally, another fourth department case, Goss v State University Construction Fund, 261 AD2d 860 (4th Dept 1999), involving a wrongful death claim alleging violations of Labor Law §§200, 240(1), 241(6), named the contractor for whom the deceased laborer worked, as well as the Fund. The worker had been killed when an extension jib to a crane fell from its storage location on the side of the truck bearing the crane and landed on the decedent's back. Unfortunately, the appellate division discussion does not mention the theory under which the Fund was named - it could have been as a contractor under the facts recited - and therefore the issue of whether the Fund was sued as an owner is not discussed.

In a comprehensive decision the Court of Claims recently concluded that the State of New York - the only named defendant on the filed claim[6] - was not an "owner" of New York State Thruway Authority property for the purpose of the applicability of Labor Law workplace safety statutes. Reynolds v State of New York, (Ct Cl) Sise, J., June 7, 2001, UID# 2001-028-0537, ( The Court said: "...the State has no right to control either general use of Thruway Authority property or specific work projects on that property, nor does it benefit from such work. In addition, it does not possess full fee title to the property in question, and there is no "nexus" between the ownership interest held by the State (however that interest might be described) and the project on which claimant was working when she was injured. For the State to be held liable under the Labor Law statutes, therefore, the Court must find that having property held "in its name" by an independent, autonomous entity gives the State an ownership interest that is sufficiently close to fee title to warrant liability under the workplace safety statutes." Finding that "...the relationship between the City of New York and the New York City Transit Authority, with respect to land leased by the City to the Transit Authority...." was "somewhat analogous", the Court cited to a Court of Appeals decision in which the City was determined to be an owner under the Labor Law, despite its lack of control over the property. See, Coleman v City of New York, 91 NY2d 821 (1997).[7] It was noted that
"...the enabling legislation that created the New York City Transit Authority is quite different from that that created the Thruway Authority, and the former contemplates much greater interaction and connection between the City and its Transit Authority than the latter establishes between the State and the Thruway Authority....

The legislation that created the Thruway Authority did not leave the State with any form of control over the use of the property or any connection to work projects taking place on the property. Nor did the enabling legislation impose on the types of interaction and connection between the State and the Thruway Authority that are found in the legislation creating the City Transit Authority. No matter how one describes the role of the State with respect to property that is ‘held in its name,' it cannot equate to the traditional and recognized ownership interest of a ‘lessor.'

...[T]his court's decision rests upon policy considerations and a firm belief that the Legislature never contemplated making the State potentially liable for all Labor Law claims that arise from the operation of the numerous public authorities it has created. Along with the Thruway Authority, other public authorities that are authorised to acquire, hold and administer property ‘in the name of the state' include the State University Construction Fund (Education law §373);....the Dormitory Authority(...[Public Authorities Law ] §1678)....As with the Thruway Authority, many of these are routinely recognized as owner of the property over which they exercise jurisdiction, and they have been held subject to liability under the workplace safety statutes of the Labor Law....(citations omitted).

The fact that these authorities have been held to be ‘owners' of the property they administer for purposes of the Labor Law does not, of course, decide the question of whether the State might not also be an ‘owner' because the property is held in its name. On the other hand, as noted above, the State exercises no right of control that could influence worker safety; there is no nexus between the State's ownership interest and work projects performed on the property; and the State does not retain any traditional, recognized ownership interest in property that is turned over to the jurisdiction of these authorities. The only possible rationale for imposing liability on the State because of its partial ownership interest would be to insure the financial security of workers....[E]ven full and unquestioned ownership may not be enough to support liability if there is essentially complete eradication of control or benefit, and, in addition, these public authorities are public institutions generally considered to be solvent as the State itself...."

This Court finds the approach taken by Judge Sise in Reynolds v State of New York, supra, most persuasive. Indeed, when an entity has been legislatively created with a specific job to do, and that delegation has effectively divorced the State from any real involvement with the task or function so delegated, it does not seem reasonable to impute liability back to the State.

Unfortunately, the description of the powers enjoyed by these various public benefit corporations are not written with a great degree of consistency. Thus, when the Thruway Authority is described as having the power "...[t]o acquire and hold in the name of the state by purchase or appropriation real property or rights or easements therein and to sell, exchange, or otherwise dispose of any real property not necessary for its corporate purposes or whenever the board shall determine that it is in the interest of the authority...." [§354(4) Public Authorities Law]; is that the same as the Dormitory Authority's power to "...acquire in the name of the state by purchase or condemnation, gift or devise real property or rights of easement on terms necessary or convenient for its corporate purposes...." [§1678(3) Public Authorities Law]; or the Facilities Development Corporation's power to "...accept jurisdiction over and to hold, use and improve[8], in accordance with such terms and conditions as the corporation and the state housing finance agency or the state medical care facilities finance agency, as the case may be, shall determine, any or all real property acquired by such agency for a health facilities improvement program....." [§4405(6) Unconsolidated Laws of New York]?

This Court finds that these kinds of descriptions of the powers of recognized, autonomous public benefit corporations, should render the entities themselves - rather than the State of New York - "owners" under Labor Law workplace safety statutes,[9] particularly where, as in the case of the Fund, the statutory scheme suggests a legislative intent to distinguish the entity further by stating where jurisdiction would lie " actions by, against or involving the fund." §373-a Education Law.

Accordingly, and for the reasons set forth above, the Court finds that the State of New York is not a proper Defendant in this action and Defendant's motion to dismiss is granted. Based upon the foregoing, the cross-motion is denied as moot.

September 27, 2002
White Plains, New York

Judge of the Court of Claims

[1]Claimant referred to himself as plaintiff throughout the Bill of Particulars.
[2]A Verified Bill of Particulars does not appear to have been filed with the Clerk's office as required. See, 22 NYCRR §206.5(c).

[3] For purposes of analogy, there are cases involving other public benefit corporations that recognize the autonomy of such corporations. They act as "independent entities" when they contract "for the design, construction or improvement of the physical facilities over which ...[they] exert exclusive control....(citation omitted)." Facilities Development Corporation v Miletta, 246 AD2d 869,870 (3d Dept 1998)(No agency relationship between State and Facilities Development Corporation [FDC] such that FDC could recover for heating costs actually borne by State); see, also, Maric Mechanical, Inc. v State of New York, 145 Misc 2d 287 (Ct Cl 1989)(The Court of Claims did not have jurisdiction over breach of contract claim against FDC for work on a sprinkler system to be done at one of the State mental hygiene facilities within its control) .

[4] In a case that predates creation of the Fund, Mitchell v State of New York, 24 Misc 2d 853 (Ct Cl 1960), affd, 14 AD2d 478 (3d Dept 1961), the Court determined that the State was an "owner" for the purposes of Labor Law §241. In Mitchell v State of New York, supra, the claimant's decedent had been killed when he was working as a laborer for a construction company that had contracted with the state university for the construction of service connections. Specifically, he was at the bottom of a 16 foot deep trench that lacked any shoring or bracing and was caught and buried when the walls fell in. The Court said: "This excavation was in connection with a building erected by the State of New York on land, record title to which was held by Cornell University. Section 5712 of the Education Law provides that ‘All buildings, furniture, apparatus and other property heretofore or hereafter erected or furnished by the state' for the New York State College of Agriculture ‘shall be and remain the property of the state'. The court finds that the State was an owner within the purview of section 241 of the Labor Law." Mitchell v State of New York, supra, at 855-856.
[5]In a footnote, Judge Hanifin pointed out that Claimant's allegation in his filed Claim and Bill of Particulars had spoken of the State having negligently created and provided a defective dangerous curb, but that thereafter in Claimant's trial memorandum, Claimant had spoken only of a failure to maintain the curb, and had stated that a construction defect was not claimed. The Court said: "This unequivocal distancing from design and construction was almost certainly dictated by the fear that the State University Construction Fund may be lurking in the wings...."
[6] In most cases a claim is filed naming the New York State Thruway Authority, one of the entities that may be sued in the Court of Claims, as well as the State of New York. See, Court of Claims Act §9.

[7] In Coleman v City of New York, supra, the defendant City had argued that because it leased the property it technically owned to the New York City Transit Authority, and had no ability to protect New York City Transit Authority employees working at the sites because of the statutory scheme creating the Authority, it should not be viewed as an "owner" under Labor Law §240(1). See, also, Gordon v Eastern Railway Supply Inc., 82 NY2d 555 (1993)(Defendant, the title owner who had leased property to another, unsuccessfully argued that it should not be viewed as an owner for Labor Law workplace safety statute purposes because it did not contract to have the work done, nor was it to be completed for its benefit.); and Celestine v City of New York, 86 AD2d 592, 593 (2d Dept 1982), affd, 59 NY2d 938 (1983), the Long Island Rail Road Company, a defendant named as an "owner" in the lawsuit, argued that it should not be viewed as an owner for Labor Law purposes "...because the property upon which the incident occurred was the subject of an easement granted by it to codefendants City of New York and New York City Transit Authority.....[The Court said:] As the grantor of an easement, the LIRR still remained the owner of the fee....[The] Labor Law, as it existed when this accident occurred (L 1969, ch 1108), made no distinctions based on encumbrances of any sort on ownership."

[8]This language appears identical to that contained in § 373(6) Education Law concerning the Fund's powers.
[9] The Court is aware that the fourth department had found that the State of New York was the "owner" - for Labor Law workplace safety statute purposes - of property in the possession and control of the Facilities Development Corporation in Shoemaker v State of New York, 186 AD2d 1028 (4th Dept 1992). The fourth department specifically noted that the State of New York did not present proof showing it was not the owner, and it is unclear whether an argument was made that such lack of ownership would not necessarily appear on the title records.