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
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
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.