HERNANDEZ v. THE STATE OF NEW YORK , #2004-010-007, Claim No. 100411, Motion No.
CLAUDINA HERNANDEZ, as Administratrix of the Estate of JOSE MANUEL HERNANDEZ The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
O'CONNOR, REDD, GOLLIHUE & SKLARIN, LLPBy: Richard S. Sklarin, Esq.
HON. ELIOT SPITZER
Attorney General for the State of New York
By: Fabiani & Cohen, LLPLisa A. Sokoloff, Esq., Of Counsel
March 3, 2004
See also (multicaptioned
The following papers numbered 1-3 were read and considered by the Court on
defendant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and
Attorney's Affirmation in Opposition and
The following facts are undisputed on defendant's motion for summary judgment.
The State contracted ECCO III Enterprises, Inc. to perform construction work on
the Saw Mill River Parkway near the intersection with the Tibbetts Avenue
footbridge in Yonkers. On August 26, 1998, at the end of the work day, the
operator of a 35 ton crane was signaled by a flagperson that traffic had been
stopped and it was clear for the crane to proceed to its parking position.
Joaquim Marques, ECCO's foreman, supervised the crane's movement. As the crane
proceeded forward, Jose Manuel Hernandez, an ECCO laborer, became pinned between
the crane and a concrete median barrier. The accident occurred at approximately
4:15 p.m. and death occurred at allegedly 4:55 p.m.. There was no explanation
as to why Hernandez was at that location prior to the accident.
Boris Vays, a New York State Department of Transportation (DOT) employee, was
the Engineer-In-Charge of construction at the site. He was the only State
employee assigned to the site and all work was performed by
not State employees (Defendant's Ex. G,
pp 23, 30-31, 34). Vays did not witness the accident nor was he present at the
site at the time of the accident. His duties included overseeing the progress
of the work and inspecting the work product for quality assurance and quality
control to determine if the work performed by ECCO was done according to the
contract and New York State standard specifications (Defendant's Ex. G, 9-10).
Vays did not inspect for nor insure compliance with Occupational Safety and
Hazard Administration (OSHA) (id.
Richard T. Hallahan, an employee of Baker Engineering NY, Inc. was the
consulting engineer retained by DOT to monitor ECCO's work for compliance with
the plans and specifications.
Claimant seeks damages for Hernandez's pain and suffering and wrongful death
based upon common law negligence and violations of Labor Law §§200,
240(1), 241(6). Defendant moves for summary judgment dismissing the claim in
its entirety. Defendant argues, inter alia, that the State did not exercise the
level of supervision and control necessary to impose liability under Labor Law
§ 200 or common law negligence; the accident did not fall within Labor Law
§ 240(1) because it was not elevation related; the claimant's Labor Law
§ 241(6) claim warrants dismissal because claimant did not establish a
violation of a specific regulation of the Industrial Code that was a proximate
cause of the accident.
Labor Law §200 is a codification of the common-law duty to provide
employees with a safe place to work (Comes v New York State Elec. & Gas
Corp., 82 NY2d 876, 877). This section applies to owners, contractors or
their agents (see Russin v Picciano & Son, 54 NY2d 311, 317).
To impose liability, it must be shown that the party to be charged had the
authority to control the activity which caused or brought about the injury
(Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352; Russin v Picciano
& Son, supra). Liability will not attach where the allegedly
dangerous condition arises from the contractor's methods and the owner did not
excise any supervising control (Lombardi v Stout, 80 NY2d 290, 295).
General supervising authority exercised at the work site, such as overseeing the
progress of the work and inspecting the work product (Alexandre v City of New
York, 300 AD2d 263, 264), are insufficient to demonstrate the level of
supervision and control necessary to impose liability under § 200 or the
common law (O'Connor v Spencer, 2 AD3d 513; Hernandez v Yonkers Contr.
Co., 306 AD2d 379, 380 [liability for a worker's injury may not be imposed
upon an engineer who was hired to assure compliance with construction plans and
specifications, unless the engineer commits an affirmative act of negligence or
such liability is imposed by a clear contractual provision]).
Claimant cites to the deposition testimony of DOT's Engineer-In-Charge, Boris
Vays, in support of claimant's argument that there are material issues of fact
regarding the State's direction and control over the work site and the operation
of the crane. Contrary to claimant's argument, however, the citations to Vays'
deposition do not establish that defendant either had or exercised more than
general supervisory authority to monitor the progress of ECCO's work and its
conformity with the contract and the specifications. Merely because Vays could
stop work that was not in conformity did not establish that Vays' authority was
of the level necessary to impose liability under § 200 or the common law.
Notably, Vays' stated at his deposition:
"My duties as an engineer in charge are to observe the work on the field,
contracts in accordance to New York State standard specifications, and contract
documents. And also to do field measurements, payments, and quality assurance
and quality control."
(Defendant's Ex. G, pp 8-9).
"First of all, we weren't supervising we were only engineering services, we were
not supervising this job site. We're providing engineer service to the State of
New York. We're not supervising the job site."
(id. at 52). Further, when asked at his deposition, "Are you supervising
the engineering aspects of the job site? You're supervising that aspect, aren't
you?" Vays responded, "We're not supervising, we're just watching [the]
contractor to do the work in accordance to drawings" (id.).
Nor are there any material issues of fact raised as to whether defendant had
authority to control the operation of the crane. When Vays left the site, there
was no other DOT employee or State employee that replaced Vays at the job site
(id. at 34). All work was performed by ECCO, not State employees
(id. at 23, 30-31, 34). ECCO supervised the job site (id. at 43).
Vays testified that the scope of his authority was outlined in the standard
specification, Section 100, which was amended by proposals for this contract
(id. at 54). Neither the specification nor the proposals were invoked or
cited to support claimant's argument.
Vays' duties included observing the progress of the work and inspecting the
work product for quality assurance and quality control to determine if the work
performed by ECCO was done according to the contract and New York State standard
specifications (id. 9-10). Vays did not inspect nor insure compliance
with OSHA (id. at 11). He did not witness the accident; he was not
present at the site at the time of the accident; and he did not supervise the
activity causing Hernandez's injury and subsequent death. Rather, the crane's
movement was supervised by ECCO's foreman, Joaquim Marques
Accordingly, the Court finds that defendant established a prima facie
entitlement to judgment in its favor and claimant failed to refute that
showing. Defendant did not exercise supervision and control over the activity
resulting in decedent's injury and subsequent death. Indeed, the level of
supervision and control exercised by defendant was not sufficient to rise to the
level necessary to impose liability under either § 200 or the common law
and claimant failed to raise a triable issue of fact which would preclude the
Court from granting defendant's motion dismissing the common law negligence
claim and the claim based upon Labor Law §200 (see Aloi v
Structure-Tone, 2 AD3d 375; Hernandez v Yonkers Contr. Co.,
supra). Accordingly, those claims are DISMISSED.
Labor Law § 240 Scaffolding and other devices for use of employees
provides in pertinent part:
"1. All contractors and owners and their agents * * * 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
Section 240(1) has been interpreted to impose absolute liability for a breach
which has proximately caused an injury (see Rocovich v Consolidated
Edison Co., 78 NY2d 509; Zimmer v Chemung County Performing Arts, 65
NY2d 513, 521). The duty imposed by §240(1) is nondelegable and an owner
is liable for a violation of the section even where the job was performed by an
independent contractor over which the owner exercised no supervision or control
(see Haimes v New York Tel. Co., 46 NY2d 132). Negligence, if
any, of the injured worker is of no consequence (see Zimmer v Chemung
County Performing Arts, supra). Labor Law §240(1) was intended
to apply in cases where there are "risks related to elevation differentials"
because of the special hazards in having to perform work under such conditions
(Rocovich v Consolidated Edison Co., supra at 514). In Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501, the Court of Appeals
"[t]he "special hazards" to which we referred in Rocovich, however, do
not encompass any and all perils that may be connected in some tangential
way with the effects of gravity. Rather, the "special hazards" referred to are
limited to such specific gravity-related accidents as falling from a height or
being struck by a falling object that was improperly hoisted or inadequately
secured (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350). In
other words, Labor Law §240(1) was designed to prevent those types of
accidents in which the scaffold, hoist, stay, ladder or other protective device
proved inadequate to shield the injured worker from harm directly flowing
from the application of the force of gravity to an object or person"
The mere fact that a crane may fall within § 240(1) under "other devices"
does not establish that any accident involving a crane results in an elevation
related risk injury warranting recovery under § 240(1) (see Smith
v New York State Elec. & Gas Corp., 82 NY2d 781). For example, in
Smith v New York State Elec. & Gas Corp, supra, the crane
operator was unaware that the load that was being dragged had been caught on the
floor and he continued to exert tension on the line until it snapped, causing
the tension ball to propel horizontally across the floor striking plaintiff in
the back. The Court of Appeals held that plaintiff's injury did not result from
an elevation-related hazard.
Nor does the fact that claimant may have been working at a location where the
crane was being operated "from a work location and vantage point elevated well
above ground level"(Affirmation in Opposition, ¶ 21) establish that the
claim falls within the ambit of § 240 (1) (Narducci v Manhasset Bay
Assocs., 96 NY2d 259, 269 ["Nor does the fact that plaintiff was working at
an elevation bring this scenario within the ambit of Labor Law §240(1)"];
D'Avila v City of New York, 205 AD2d 729 [crane operator killed when a
subway train crashed into the crane and he fell from the crane to the tracks;
Second Department held § 240(1) inapplicable because improper placement of
crane only risked a collision with an oncoming train, not an elevation related
Hernandez was not injured as a result of a fall or a falling object as
contemplated by § 240(1) (see Smith v Hovnanian Co., 218 AD2d
68, 71 [worker injured when extension boom lifted sheet rock from a truck and
worker's head became pinned between the sheet rock and the wall of the building;
injury not covered by Labor Law §240(1) because not falling worker or
falling object; rather "horizontal movement"]). Here, Hernandez was exposed to
"a general hazard of the workplace, not one contemplated to be subject to Labor
Law § 240(1)" (Narducci v Manhasset Bay Assocs., supra at
269; see also Thompson v Ludovico, 246 AD2d 642 [defendant
granted summary judgment dismissing claim because crane worker, who was
allegedly injured when boom slipped and crushed his arm, failed to establish a
prima facie case that Labor Law §240(1) was violated in an elevated related
accident; rather, the risk posed was usual and ordinary at a construction
The injury producing incident of being crushed between the crane and the
concrete barrier was outside the scope of § 240(1) (see Simon v
City of New York, 265 AD2d 318 [worker was crushed between two railroad
cars; Second Department held injury producing incident was outside scope of
Accordingly, claimant's § 240(1) claim is DISMISSED.
Labor Law § 241(6)
Labor Law § 241, Construction, excavation and demolition work
(6) requires owners, contractors, or their agents, to "provide reasonable and
adequate protection and safety" for workers and to comply with the specific
safety rules and regulations promulgated by the Commissioner of the Department
of Labor. A necessary predicate to a § 241(6) claim is that the regulation
invoked must mandate compliance with "concrete specifications" such as a
"specific, positive command" (Ross v Curtis-Palmer Hydro-Elec. Co.
at 504, 505). A regulation which establishes general safety
standards and which adds nothing to the common law rule requiring the provision
of a safe workplace is insufficient (id.
). The violation of a regulation
is merely some evidence of negligence and contributory and comparative
negligence are valid defenses to a § 241(6) claim
It is noted that neither the claim nor the bill of particulars set forth a
violation of any specific sections of the Industrial Code. Defendant's motion
addresses the provisions that were cited in the companion action brought in
Supreme Court, against ECCO on the assumption that they are the provisions which
claimant intended to invoke in this claim. Claimant did not seek to amend the
claim or the bill of particulars; rather, paragraph 43 of claimant's attorney's
affirmation in opposition merely states, "[a]s movants' papers properly reflect,
plaintiffs rely on 12 N.Y.C.R.R. § 23-8.1(b)(1) and 23-1.5(a), (b), (c)
for its Labor Law § 241(6) claim."
In support of the § 241(6) claim based upon § 23-1.5, claimant
relies upon a 1996 case from the First Department, McCormack v
Helmsley-Spear, Inc., 233 AD2d 203. Claimant's reliance, however, is
misplaced as later appellate cases from the same department do not hold that
§ 23-1.5 is sufficiently specific to constitute a basis for a § 241
(6) claim (see Maldonado v Townsend Ave. Enters., Ltd.
Partnership, 294 AD2d 207, 208 [12 NYCRR 23-1.5 (a) and (c) (1) are "generic
directives that are insufficient as predicates for section 241(6) liability"];
Sihly v New York City Trans. Auth., 282 AD2d 337 [12 NYCRR 23-1.5 "would
not constitute a basis for a claim under Labor Law § 241(6)"]). Moreover,
the Second Department has held that "12 NYCRR 23-1.5 merely establishes a
general safety standard that is insufficient to give rise to the nondelegable
duty imposed by Labor Law § 241(6)" (Mancini v Pedra Constr., 293
AD2d 453, 454).
Thus, claimant's § 241(6) claim, insofar as it is based upon an alleged
violation of 12 NYCRR 23-1.5, is DISMISSED.
12 NYCRR 23-8.1 (b) (1) provides in pertinent part:
"[e]very mobile crane *** shall be thoroughly inspected by a competent,
designated employee or authorized agent of the owner or lessee of such mobile
crane *** at intervals not exceeding one month. Such inspections shall include
but not be limited to all blocks, shackles, sheaves, wire rope, connectors, the
various devices on the mast or boom, hooks, controls and braking
In support of the § 241(6) claim based upon § 23-8.1(b) (1), claimant
cites Howell v Koch Erecting Corp., 192 Misc 2d 491, which holds that
section to be sufficiently specific to support a § 241(6) claim; there have
been no reported Appellate Division cases addressing this issue. Assuming that
this section is sufficiently specific to uphold a § 241(6) claim, defendant
argues that the claim warrants dismissal because no malfunction of the crane is
alleged to have contributed to the cause of the accident (see Walker v
Ekleco, Co, 304 AD2d 752 [defendants established prima facie entitlement to
summary judgment dismissing § 241(6) claim by demonstrating that sections
of Industrial Code relied upon were inapplicable to the facts of the case]).
Indeed, claimant has failed to rebut defendant's showing that the Westchester
County Police Department impounded the crane at the scene, inspected it, and
found it to be in good working order (Defendants' Ex. D, Westchester County
Police Field Sketch, Dated September 4, 1998; Unusual Incident Report ¶5).
The Police Accident Investigation Report specifically noted:
"BRAKE CHECK - WORKING
BACK UP ALARM - WORKING
STEERING CHECK - WORKING PROPERLY."
(Defendants' Ex. D, Westchester County Police Field Sketch, Dated September 4,
1998; Unusual Incident Report). Thus, claimant has failed to come forward with
any proof that the section was violated and that such violation was a proximate
cause of the accident. The Court finds the affidavit of claimant's expert to be
unavailing in defeating defendant's showing of entitlement to judgment in its
favor as a matter of law (see Winegrad v New York Univ. Med.
Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557;
Oakley v Town of Brookhaven, 273 AD2d 211).
Thus, claimant's § 241(6) claim, insofar as it is based upon an alleged
violation of 12 NYCRR 23-8.1 (b)(1) is DISMISSED.
Accordingly, defendant's summary judgment motion is GRANTED and Claim No.
100411 is DISMISSED in its entirety.
March 3, 2004
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
Claimant's Supreme Court action against ECCO
was dismissed on the ground that Worker's Compensation was claimant's exclusive
remedy and barred action against Hernandez's employer (Hernandez v Yonkers
, 292 AD2d 422, 424).
Claimant's Supreme Court action against Baker
Engineering NY, Inc. was dismissed on the grounds that liability should not be
imposed upon an engineer hired to assure compliance with construction plans and
specifications and Baker did not exercise supervision and control over the
activity resulting in Hernandez's injury and death (Hernandez v Yonkers
, 306 AD2d 379).