New York State Court of Claims

New York State Court of Claims

HALLOCK v. THE STATE OF NEW YORK, #2002-031-025, Claim No. 98376, Motion Nos. M-64742, CM-64863


Questions of fact concerning whether Claimant's work site was elevated and whether Claimant's employment had been terminated prior to his accident prevent summary judgment on Claimant's Labor Law §240 cause of action.

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):
M-64742, CM-64863
Cross-motion number(s):

Claimant's attorney:
CELLINO & BARNESBY: Gerald W. Schaffer, Jr., Esq.
Defendant's attorney:
Attorney General of the State of New York
Third-party defendant's attorney:

Signature date:
June 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant and cross-motion by Claimant for summary judgment:
  1. Notice of Motion, filed February 19, 2002;
  2. Affidavit of Cornelius J. Lang, Esq., sworn to January 24, 2002, with attached exhibits;
  3. Notice of Cross-Motion, filed March 15, 2002;
  4. Statement of Gerald W. Schaffer, Jr., Esq., affirmed March 14, 2002, with attached exhibits;
  5. Affidavit of Cornelius J. Lang, Esq., in opposition to cross-motion, sworn to March 20, 2002.
This is Defendant's motion and Claimant's cross-motion for summary judgment. Claimant Wayne Hallock alleges negligence stemming from an April 3, 1998 incident which occurred at a bridge reconstruction project on Route 16 in Olean, New York. On that day, Mr. Hallock was working for Frontier Asphalt & Paving Inc., a contractor for the State of New York. According to Claimant, just prior to the accident, he was working on top of a cement piling, trying to remove boards which had been used to create a form for the piling prior to pouring the cement. At this point in time, the cement had hardened and Claimant was removing the planking from the form. On one side, the piling was at ground level. On the other side, the piling formed the wall of a trench described by Claimant as approximately four feet deep. Claimant alleges that he was on his hands and knees removing planks (his feet toward the trench and his head toward ground level) when, as he pulled on a plank, the plank broke causing him to fall backwards into the trench. At the time of the accident, Claimant was allegedly working alone and, therefore, the accident was unwitnessed. Claimant alleges that he injured his head and back as a result of this incident and that Defendant is liable for his injuries, pursuant to the provisions of Labor Law §§200, 241(6) and 240(1).

In its motion, Defendant argues that none of the three labor law sections allegedly violated by Defendant apply in this matter. Claimant, on the other hand, asserts in his cross-motion that he is entitled to summary judgment on his Labor Law §240(1) claim. For the reasons that follow, I find that Defendant is entitled to partial summary judgment relating to Claimant's §200 and §241(6) claims, but that questions of fact exist which preclude summary judgment in favor of either party with regard to the §240(1) claim.

Labor Law §§ 200 and 241(6)

Defendant posits that the State took no part in the direction, supervision, or control of the work that Claimant was allegedly involved in at the time of the accident. For this reason, it argues that it cannot have violated §200 as such supervision and control is a necessary element of a cause of action under this section. Claimant apparently concedes this point. In any event, he has come forward with neither a contrary interpretation of the law, nor evidence that would indicate that the State had any supervisory role in Claimant's work. Labor Law §200 is a codification of the common law duty of a land owner to provide and maintain a safe place to work. Generally, in order to establish liability under this section, proof that the land owner exercised supervisory control over the work which caused the injury is required (Comes v New York State Electric and Gas Corporation, 82 NY2d 876; Rapp v Zandri Constr. Corp., 165 AD2d 639).  Claimant has failed to show that Defendant had any supervisory control over the work he was performing at the time of his injury. The Labor Law §200 cause of action must be dismissed.

Defendant also argues that the State cannot be held liable under §241(6) as that section requires the violation of an underlying regulation which identifies a specific standard of care owed to an employee. Defendant maintains that Claimant has failed to identify any such specific regulation. Again Claimant does not dispute Defendant's statement of the law or facts concerning this issue.

Unlike §200, Labor Law §241(6) does not require an element of supervisory control for liability to attach. Instead, §241(6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers. However, in order to establish a proper claim under this section, a claimant must cite a violation of a specific regulation. Moreover, that regulation must set forth a specific safety standard, as opposed to a generic, general safety standard. Claimant must also demonstrate that the violation of this regulation was the proximate cause of his injury (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 505). Claimant has failed to meet this burden and Defendant is entitled to summary judgment on Claimant's Labor Law §241(6) cause of action.

Labor Law §240(1)

Claimant's Labor Law §240(1) cause of action is the primary area of dispute between the parties, with each seeking summary judgment. However, I find that questions of fact preclude summary judgment in favor of either party. Claimant's cross-motion must be denied as his alleged fall was unwitnessed and Defendant legitimately disputes the existence and causation of the injuries allegedly sustained. For this reason alone, summary judgment in favor of Claimant is inappropriate (see, Abramo v Pepsi-Cola Buffalo Bottling Co., 224 AD2d 980).

Additionally, questions regarding the work site preclude summary judgment for either party. Claimant alleges that, since he was working four feet above the floor of the trench, his was the type of work that falls under the scope of Labor Law §240(1). Defendant, however, alleges that Claimant was working at ground level and for this reason §240 does not apply. While it is true that the Appellate Division Fourth Department has held that falls into holes from ground level are not covered by §240, generally however, the cases in which they have done so involve holes or trenches that were not part of the "work site" (see, Johnson v City of Corning, 269 AD2d 865; Duke v Eastman Kodak Co. 248 AD2d 990; Riley v Stickl Construction Corp., 242 AD2d 936). In this instance, I find that questions exist as to whether the trench into which Claimant fell was a part of the work site and, if so, whether the work that he was performing upon the form exposed him to the type of gravity related risks covered by the statute (see Hoffmeister v Oaktree Homes, Inc., 206 AD2d 921; Allen v City of Buffalo, 161 AD2d 1134).

Additionally, Claimant and Defendant dispute whether or not Claimant was even employed (and thereby protected by the Labor Law) at the time of his accident. Both parties agree that, prior to his accident that morning, Claimant and his immediate supervisor, Gary Quillin, had quarreled and Claimant was told to pack up his tools and leave the work site. It is also undisputed that Mr. Quillin had the authority to fire Claimant. Defendant argues that, because Claimant's employment had been terminated prior to the occurrence of his alleged accident, he is not protected by the provisions of the Labor Law.

However, rather than leaving after his conversation with Quillin, Claimant decided to discuss the matter with Quillin's supervisor who was expected at the work site shortly thereafter. Claimant continued to work, or at least to stay on and around the construction site, with the knowledge of Mr. Quillin. According to Claimant, he spoke with Michael Halloran, the "overall supervisor" and a person superior to Quillin. Claimant alleges that Halloran permitted him to continue working and in fact assigned certain work to him after the alleged termination by Quillin. Claimant also points to the fact that his time sheet for the day of the accident indicates that he worked through the time of the accident and that he was paid for this time by Frontier Asphalt as evidence that his employment was not terminated prior to the accident. I find that the papers before me demonstrate the existence of a question of fact as to whether or not Claimant had been terminated prior to his accident.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted in part in that Claimant's causes of action based upon Labor Law §200 and §241(6) are dismissed, that portion of the Defendant's motion seeking summary judgment on Claimant's Labor Law §240(1) cause of action is denied; and it is further

ORDERED, that Claimant's cross-motion for summary judgment on his Labor Law §240(1) cause of action is denied.

June 25, 2002
Rochester, New York

Judge of the Court of Claims