New York State Court of Claims

New York State Court of Claims

ORTLIEB v. THE STATE OF NEW YORK, #2003-015-335, Claim No. 105460, Motion Nos. M-66606, M-66714


Worker on town water project involving installation of water pipe along State highway was injured when pipe rolled down embankment and struck claimant. Court denied claimant's motion for summary judgment under Labor Law § 240 (1) since claimant failed to prove accident site was owned by the State or that the State had the right to insist on safety practices. Court also denied defendant's [cross] motion to strike the note of issue.

Case Information

JOHN ORTLIEB The caption of the claim has been amended sua sponte to delete extraneous information.
Claimant short name:
Footnote (claimant name) :
The caption of the claim has been amended sua sponte to delete extraneous information.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-66606, M-66714
Cross-motion number(s):

Claimant's attorney:
Setright & Longstreet, LLPBy: Michael J. Longstreet, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion pursuant to CPLR 3212 for an order granting summary judgment against the defendant on the issue of liability under Labor Law § 240(1) is denied. Defendant's motion to strike the note of issue is likewise denied. The claim filed on January 14, 2002 seeks to recover damages for personal injuries sustained by claimant on November 14, 2000 when an 850 pound water pipe which claimant was to install as part of his employer's contract with the Town of Malone rolled into a trench in which claimant was standing striking him and causing injury. At the time of the accident claimant was employed by Syracuse Constructors, Inc. which was under contract with the Town of Malone to install a water pipeline on land purportedly owned by the State of New York adjacent to State Route 11 just east of County Route 24 in the Town of Malone, New York, Franklin County.

Claimant, alleging that the State as owner of the land on which an alleged height differential/gravity related accident occurred is vicariously liable for his injuries, moved for [partial] summary judgment on the issue of liability pursuant to Labor Law § 240 (1). Defendant did not formally oppose the motion choosing instead to make a separate motion for an order striking the note of issue filed by claimant on March 27, 2003 [1] on the ground that the claim is not ready for trial. Defendant alleges that due to a question regarding possible insurance coverage naming the State of New York as an insured the Attorney General did not serve discovery demands with its answer and did not otherwise conduct disclosure including examinations before trial or a physical examination of the claimant. Defense counsel requests on his motion that since no discovery has taken place and the issue of insurance coverage remains unresolved the claimant's motion for summary judgment be adjourned without date in the interest of justice.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, 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 demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653).

In an obvious effort to streamline the motion process claimant's attorneys submitted a very brief affirmation incorporating by reference motion papers previously submitted to Supreme Court, Franklin County on a similar motion in a separate action against the Town of Malone (Index No. 2001-912, RJI No. 16-1-2001-0479). Those papers, inter alia, included an affirmation of claimant's counsel; a copy of the Supreme Court complaint; a copy of a transcript of a General Municipal Law §50-h hearing of John Ortlieb; an incomplete and disordered copy of a transcript of the examination before trial of Richard Burdick; a copy of the defendant's (Town of Malone) answer; a copy of the notice of claim pursuant to General Municipal Law 50-e; copies of color photographs of the accident scene purportedly taken by claimant on some unspecified date; an affidavit of John Ortlieb sworn to May 13, 2002; and an affidavit of Brendan J. Reagan, an attorney for the Town of Malone sworn to July 8, 2002.

Claimant did not, however, include copies of the pleadings in the instant action as required by CPLR 3212 (b).

Labor Law § 240 (1) provides:
§ 240. Scaffolding and other devices for use of employees

1. All contractors and owners and their agents, except owners of one and two-family dwellings 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.
* * *
In order to obtain a judgment on the issue of liability pursuant to this section of the Labor Law it is incumbent upon the movant to demonstrate that the party sought to be held liable is in fact an owner, contractor or their agent; (see, Paris v Reiss, 251 AD2d 1016; Perez v Paramount Communications, 247 AD2d 264, affirmed 92 NY2d 749; Phillips v Eastman Kodak Co., 204 AD2d 979; Lacey v Long Is. Light. Co., 293 AD2d 718); that claimant's injury arose during one of the enumerated activities listed in the statute with reference to a building or structure (cf., Covey v Iroquois Gas Transmission Sys., 218 AD2d 197, affirmed 89 NY2d 952) and that the injury was proximately caused by either the absence of a safety device designed to protect the worker (see, Burris v City of Beacon, 257 AD2d 586; Beauchesne v City of New York, 261 AD2d 145) or the inadequacy of such a device (see, Smith v Pergament Enters., 271 AD2d 870; Secord v Willow Ridge Stables, 179 Misc 2d 366).

On this motion, claimant failed to establish that the State of New York was in fact the owner of the property on which the subject accident occurred. He offered no proof whatsoever that Route 11 is indeed a State highway owned, operated and maintained by the State nor any proof that the subject accident occurred on land owned by the State or within the State's right-of-way (cf., Mason v State of New York, 180 AD2d 63). In this regard claimant has not shown whether the site of the accident was actually owned by the State or was merely subject to a highway easement with fee title or ownership residing in another person or persons (see, Lacey v Long Is. Light. Co., supra). Absent proof of ownership of the site or proof that defendant had a right to insist that proper safety practices be followed (Lacey, supra at 719; Copertino v Ward, 100 AD2d 565; Lynch v City of New York, 209 AD2d 590) liability against the State cannot be determined as a matter of law. The existence of a material issue of fact regarding the site's ownership precludes summary judgment even though the motion was unopposed. This factual issue must await determination at trial or the submission of a properly supported motion. Claimant's motion is denied.

Defendant's motion will now be addressed. Section 206.12 (d) of the Uniform Rules for the Court of Claims, in relevant part, provides:
(d) Striking Note of Issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. After such period, no such motion shall be allowed except for good cause shown.
According to the affidavit of service attached to the defendant's papers defendant's motion was served upon claimant's attorneys on the 20th day after the filing of the note of issue and the motion was therefore timely made.

Resolution of the defendant's motion to strike the note of issue rests in the Court's discretion based upon movant's demonstration that either a material fact contained in the certificate of readiness is incorrect or the certificate fails to comply with the requirements of § 206.12. The certificate obviously complies with the prescribed form set forth in section 206.12 of the Uniform Rules for the Court of Claims although defense counsel has asserted that the certificate is "at best misleading". Much of defense counsel's affidavit in support of the motion is devoted to an explanation of defendant's efforts to investigate the insurance coverage issue. This explanation rings hollow and suggests to the Court that too little effort was devoted to determining whether insurance coverage was, in fact, available to provide a defense to the action. The excuses offered do not explain defendant's failure to at least serve discovery demands, or to participate as an observer in examinations before trial conducted in claimant's companion case in Supreme Court.

Court records demonstrate that defense counsel was aware of the insurance coverage issue as early as March 30, 2002 when the Court conducted a preliminary conference. In fact, in paragraph 5 of his affidavit in support of the motion defense counsel admits that as early as February 8, 2002 defendant "received a fax from Selective Insurance Company stating that their insurance policy was not renewed in August of 2000, and therefore Selective Way was not the carrier of record for the November, 2000 injury date." Counsel further alleges the State's investigator (Boccio) was directed to contact an insurance agency (Spear Agency) to have the claim resubmitted to the carrier of record. Investigator Boccio allegedly contacted Patrick McGuire at the Spear Agency on December 27, 2002, ten months after defendant received notice of Selective's denial of coverage. However, Boccio did not attempt to contact McGuire further until January 13, 2003. Counsel alleges unsuccessful attempts by Boccio to contact McGuire on January 14 and February 14, 2003 and an additional unsuccessful attempt to resolve the insurance coverage issue on April 2, 2003. These allegations by defense counsel are, of course, hearsay and Boccio's affidavit was not included in the motion papers. Defense counsel failed to allege any activity on his own part to address the insurance coverage question; his expressed intention in his supporting affidavit to commence a separate action for declaratory judgment in this Court notwithstanding.

Claimant alleged in the certificate of readiness that discovery proceedings now known to be necessary are completed by placing an X in that column of the certificate and has further alleged that there are no outstanding requests for discovery. The latter statement appears to be true based upon the factual allegations contained in the Assistant Attorney General's affidavit in support of defendant's motion. The accuracy of the former statement, however, is questionable. In alleging that necessary discovery proceedings were completed it appears that claimant's counsel has incorrectly stated a fact. While under the circumstances claimant might have alleged on the certificate that the defendant waived its right to discovery he has not done so; choosing instead to assert that necessary discovery is complete. The Court finds that assertion to be technically incorrect. However, in light of defendant's failure to seek discovery during the period between the claim's January 14, 2002 filing and the March 28, 2003 filing of claimant's motion the Court, in its discretion, hereby denies defendant's motion to strike the note of issue.

Claimant's motion for summary judgment is denied. Defendant's motion to strike the note of issue is likewise denied. Pursuant to 22 NYCRR § 206.19 the Court hereby bifurcates this matter for trial. A trial on the issue of liability only will be scheduled as soon as practicable. In the event that the defendant is found liable for claimant's injuries at trial the defendant will be granted a reasonable time to schedule and conduct an independent medical examination of the claimant.

June 27, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-66606:
  1. Notice of motion dated March 26, 2003;
  2. Affirmation of Michael J. Longstreet dated March 26, 2003, with exhibits;

Motion No. M-66714:

  1. Notice of motion dated April 16, 2003;
  2. Affidavit of Dennis M. Acton sworn to April 16, 2003;
  3. Affirmation of Michael J. Longstreet dated April 18, 2003 with exhibits;
  4. Affidavit of Dennis M. Acton sworn to April 28, 2003.

[1]Claimant's summary judgment motion was filed March 28, 2003.