New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK , #2004-010-007, Claim No. 100411, Motion No. M-67376


Case Information

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.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New York
By: Fabiani & Cohen, LLPLisa A. Sokoloff, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
March 3, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 Exhibits........................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Defendant's Reply Affirmation................................................................................3

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 ECCO,[1] 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. at 11).

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.[2]

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
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(1)
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 employed."

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 stated:
"[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" [emphasis added].

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 risk]).

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 site]).

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 § 240(1)]).

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., supra 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 (id.).
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 mechanisms."

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:



(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
White Plains, New York

Judge of the Court of Claims

[1] 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 Contr. Co., 292 AD2d 422, 424).
[2]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 Contr. Co., 306 AD2d 379).