New York State Court of Claims

New York State Court of Claims

MOFFAT v. THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, NEW YORK STATE THRUWAY AUTHORITY, and NEW YORK STATE CANAL CORPORATION, #2002-031-035, Claim No. 98322, Motion No. M-65196


Synopsis


Statements in previous order denying summary judgment, however clear and unambiguous, were dicta. Doctrine of law of the case does not preclude inquiry into whether Claimant's activities at the time of his accident fall within the protections of Labor Law § 240.

Case Information

UID:
2002-031-035
Claimant(s):
ROBERT H. MOFFAT and CECILE MOFFAT
Claimant short name:
MOFFAT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, NEW YORK STATE THRUWAY AUTHORITY, and NEW YORK STATE CANAL CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98322
Motion number(s):
M-65196
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CELLINO & BARNES, P.C.BY: THOMAS J. RZEPKA, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NY State Attorney General
BY: KENNEY, KANALEY, SHELTON & LIPTAK, LLPMICHAEL KANALEY, JR., ESQ.
Third-party defendant's attorney:

Signature date:
September 9, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Claimants for an order determining that language in a previous order is "law of the case":
1) Notice of Motion, filed May 16, 2002;
2) Affirmation of Thomas J. Rzepka, Esq., affirmed May 3, 2002;
3) Opposing Affidavit of Michael J. Kanaley, Jr., Esq., sworn to May 15, 2002, with attached exhibit. Upon the foregoing papers and informative and well presented oral argument of counsel for the parties, the motion is denied.

Claimants filed their claim on May 14, 1998, alleging that Claimant Robert H. Moffat fell from an elevated work site. This matter was assigned to the Hon. John P. Lane. Claimants moved for partial summary judgment in June 1999, determining that Defendants were liable for Claimant's injuries under Labor Law § 240(1). By order filed September 23, 1999, Judge Lane denied Claimants' motion because Claimant's "account of his unwitnessed accident is controverted and lacks corroboration by a co-worker." On page 4 of that order, Judge Lane further opined that it was "clear from the claim and from [Robert H. Moffat's] deposition testimony that his claim is precisely the sort intended to be covered by section 240(1)..."

Upon Judge Lane's retirement from the Court of Claims, this matter was transferred to me. I set the case down for trial on March 11, 2002. Prior to the trial date, it appeared from discussions with the attorneys in this matter that the issue of whether or not Judge Lane had actually rendered a decision on Defendant's liability under § 240(1) would be the subject of a pre-trial motion.

Claimants now bring this motion seeking a determination that language in the previous order is law of the case. The motion, brought at my direction upon identifying that potentially thorny pre-trial issue, is denominated in the papers as a motion "to settle a previous order" pursuant to CPLR 2221. However, I shall consider it a motion in limine to prevent Defendant from disputing that Judge Lane's previous order was "law of the case."

The two issues before me are whether or not this language was dicta and, if not dicta, whether I should reconsider the ruling in light of subsequent changes in the law that would call this determination into question.

Claimants maintain that this language is not dicta. Their position is that Judge Lane was required to first determine whether § 240 applied to this incident and then, only if § 240 did apply, to determine if the necessary causation existed as a matter of law. Claimants assert that Judge Lane could not have reached the issue of causation unless he first determined that §240 did apply. Further, Claimants argue that the clear and concise language of his decision leaves no doubt that Judge Lane decided this issue. According to Claimants, this constitutes the "law of the case" and Defendant is no longer in a position to dispute this issue.

Defendant argues that Judge Lane could have determined that, because a question of fact existed regarding causation, the motion should be denied on that basis without first analyzing the applicability of § 240. Therefore, because the applicability of § 240 did not have to be determined, Judge Lane's comments are dicta. Defendant also points out that Judge Lane did not grant partial summary judgment on the applicability of § 240, but rather denied the motion in its entirety. This, asserts Defendant, is important for two reasons. First, it means that Defendant was not an aggrieved party with rights of appeal from the decision. Second, it raises doubt as to whether Judge Lane clearly and unequivocally determined the issue. This would indicate that Judge Lane's statements concerning the applicability of the statute were dicta.

The doctrine of law of the case is a species of collateral estoppel which may be used for intra-action issue preclusion (Siegel, NY Prac § 443, at 716 [3d ed]). Judge Lane indeed denied the Claimants' earlier motion. He did so because the incident was unwitnessed and uncorroborated and the origin of the alleged injuries was contested. He, therefore, determined that a question of fact existed concerning causation which precluded summary judgment as a matter of law. I find that it was indeed possible for Claimants' motion to be denied upon an analysis of causation alone and that the applicability of Labor Law § 240 to Claimant's accident was not an issue that was necessarily decided. As such, Judge Lane's comments concerning § 240, though clear and unambiguous, were dicta. I am not bound by his comments (see, Silberstein v Silberstein, 218 NY 525).

Additionally, I find that, even if Judge Lane had definitively determined this issue and granted partial summary judgment, a motion for renewal could and should be granted based upon developments in the law which have occurred since his decision. CPLR § 2221(e)(2) permits a party to bring a motion that would affect a previous order when: "there has been a change in the law which would change the prior determination" (see, Glicksman v Board of Education, 278 AD2d 364). There have been changes in the law which would affect Judge Lane's statements concerning the applicability of Labor Law § 240 to this case. Specifically, Defendant pointed out the Court of Appeals case Bond v York Hunter Construction Inc., 95 NY2d 883 (2000), which Defendant argued changed the law concerning the applicability of § 240 in cases such as the one at bar. In Bond, the plaintiff, a construction worker, was injured when he attempted to exit his construction vehicle. He used the track of the vehicle as a step, slipped on grease that had been spilled on the track, and fell approximately three feet to the ground. The Court of Appeals determined that this was not the type of matter covered by the protections of § 240 stating: "As a matter of law, the risk of alighting from the construction vehicle was not an elevation-related risk which calls for any of the protective devices of the type listed in Labor Law § 240(1)" (Bond at 884-85). Claimants' counsel astutely distinguished Bond by pointing out that here Claimant Robert H. Moffat was not alighting from the machine but rather had climbed onto the machine to check the engine.

Significantly, several cases decided since both the earlier motion and Bond clearly remove Claimant's accident from the types of cases covered by § 240, both because the accident did not result from an elevation related risk and because a highway at grade is not a building or structure within the meaning of Labor Law § 240 (see, Vargas v State of New York, 273 AD2d 460; DiBenedetto v Port Authority of N.Y. and N.J., 293 AD2d 399; Spears v State of New York, 266 AD2d 898; Dilluvio v City of New York, 264 AD2d 115, affd 95 NY2d 928).

The DiBenedetto case, decided on April 25, 2002, interpreted the Bond case as denying § 240 protection to a worker who fell from a construction vehicle. The plaintiff in DiBenedetto was not alighting from the vehicle but performing a minor repair. In Spears, which involved a set of facts substantially identical to those here, the Claimant, the employee of a contractor performing work on a State highway, fell from the top of a truck while attempting a repair. The Appellate Division, Fourth Department (affirming Court of Claims Judge Philip J. Patti) determined that: "Because a highway at grade is not a building or structure within the meaning of section 240(1), that section imposes no duty upon the owner of a highway under construction or repair" (Spears at 898). Based upon these recent developments in the law, not only is Claimant's argument that his activities at the time of his accident fall within the protections of Labor Law § 240 without merit but, on the facts before me, I find that Claimant does not have a valid cause of action under § 240 and that portion of his claim must be dismissed.

Based upon the foregoing it is hereby:

ORDERED, that Claimants' motion seeking a determination that Judge Lane's order filed September 23, 1999, determined the issue of the applicability of Labor Law § 240 is denied; and it is further

ORDERED, that summary judgment in favor of Defendant on Claimants' Labor Law § 240 action is granted, sua sponte, and that cause of action is dismissed.

September 9, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims