COSTICH v. THE STATE OF NEW YORK, #2004-013-065, Claim No. 106020, Motion No.
Defendant's motion for summary judgment is granted insofar as dismissing
Claimant's negligence cause of action and the causes of action under
§§ 200 and 241(6) of the Labor Law as based on alleged violations of
12 NYCRR 23-4.3 and 23-4.2(k), but denied with respect to Claimant's
§241(6) cause of action as based on an alleged violation of 12 NYCRR
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
ALEXANDER & CATALANO, LLPBY: TIMOTHY R. MANDRONICO, ESQ.
COSTELLO, COONEY & FEARON, PLLCBY: DANIEL P. FLETCHER, ESQ.
December 31, 2004
See also (multicaptioned
This is an action for personal injuries arising out of a construction accident
which occurred on October 29, 2001, when the Claimant, Adam Costich's, left knee
was struck by a drill bit which had been caused to roll into Claimant when the
arm of a backhoe being operated by Claimant's co-employee struck the bit.
Defendant moves this Court for summary judgment seeking to dismiss the claim in
its entirety. The following papers were read and considered on the
1. Notice of Motion (M-67769);
2. Supporting affidavit of Daniel P. Fletcher, Esq.;
3. Defendant's memorandum of law;
4. Opposing affidavit of Timothy R. Mandronico, Esq.;
5. Opposing affidavit of Adam Costich;
6. Claimant's memorandum of law;
7. Reply affidavit of Brendan J. Reagan, Esq.;
8. Reply memorandum of law;
9. Filed papers: claim, answer.
Nory Construction Co., Inc. (Nory) was the General Contractor on a project
described as "2.2 Kilometers of Asphalt Concrete Reconstruction on Route 404
(Empire Boulevard) in the Town of Irondequoit" (Contract No. D258645, attached
to the opposing affidavit of Timothy R. Mandronico, Esq. as Exhibit B). The
overall project involved the lowering of portions of Empire Boulevard to extend
the sight distances of the traveling public and the widening of the highway,
bike path and adding a sidewalk, which meant moving back the banks going down
the hill on either side of the highway. To do this, a retaining or lagging wall
had to be installed (Deposition of Dennis Carroll, Engineer-In-Charge (EIC),
attached to the affidavit of Timothy R. Mandronico, Esq. as Exhibit G, p.
The Claimant was a laborer first employed by Nory in April of 1996. He was
assigned to the Empire Boulevard job in September of 2001and usually worked on
this job with Donny Lockwood, another Nory employee, who operated heavy
equipment. On October 29, 2001, Claimant arrived at the site at approximately
7:00 a.m. Throughout the day, Claimant marked the I-beams (piles) with chalk to
show Mr. Lockwood how much stone to put down before the lagging could be put in.
According to Claimant, Lockwood would fill the bucket of the backhoe he was
operating with stone and then dump the stone to the height marked in chalk on
the I-beams by the Claimant. After the stone had been tamped down, Claimant
would put up the lagging (Claimant's affidavit, ¶5; Claimant's deposition,
attached to the affidavit of Timothy R. Mandronico, Esq. as Exhibit F, pp.
Before the incident, Claimant noticed that a steel drill bit had been left
sitting on top of the bank behind the lagging wall by US Drilling, one of Nory's
subcontractors on the job. According to Claimant, this was the first time that
a large drill bit had been left close, less than a foot, from the edge of the
trench. Claimant asked Donny Lockwood if they should get a chain and move the
bit, but Lockwood decided that they could dig around it. At the time of the
incident, Claimant was on his hands and knees marking with chalk the point on
the I-beams up to where stone had to be laid when Lockwood swung the arm of the
backhoe around. Claimant heard metal hit metal and then heard Lockwood yell,
"Look out!" As soon as Claimant looked up, he saw the drill bit start to roll
over his heel (Claimant's deposition, Exhibit F, pp 31-33).
According to the Claimant, he was working in a ditch at the time of his
accident. He described the ditch as being 5 to 6 feet wide with a back wall,
the side farthest from the road, measuring 10 to 12 feet deep and a front wall,
the side closest to the drill bit, of about 5 feet. The drill bit was about 4
feet tall, 2 ½ to 3 feet in diameter, and weighed between 500 and 700
pounds. (Claimant's deposition, Exhibit F, pp. 34-35, 38; Claimant's affidavit,
¶¶ 5 and 6).
Representatives of the State were frequently on site. Claimant identified a
State Inspector, Brenda Porter, and her boss, Dennis Carroll, the EIC.
According to Claimant, the State representatives were on site to ensure
compliance with the contract specifications and to ensure safety. While
admitting that he did not take orders from the State Inspectors and that he had
no conversations with Mr. Carroll with respect to the job or the way he was
performing his job, Claimant stated that Mr. Carroll told him on one occasion
not to stand behind the piles before backfilling in case the wall behind the
piles should cave in. Any safety meetings were, however, conducted by the Nory
superintendent and not by the State (Claimant's deposition, Exhibit F, pp. 27 to
29; Claimant's affidavit, ¶ 10).
Both Ms. Porter and Mr. Carroll were on site at the time of the incident.
According to Ms. Porter, it was her responsibility to ensure that the retaining
wall was built according to the State's standards and specifications. She could
not recall ever seeing a drill bit too close to a trench or ditch nor speaking
to the Claimant about safety issues. If she saw a worker without a hard hat or
other safety equipment on, Ms. Porter would have spoken to the worker (Porter's
deposition, attached to the affidavit of Timothy R. Mandronico, Esq., as Exhibit
H, pp. 20, 23, 25). Ms. Porter saw Claimant in the ditch and Mr. Lockwood in
the backhoe right before the accident. She saw the arm of the backhoe swing
around and hit the drill bit causing it to run into the ditch. Ms. Porter
described the ditch as being, "probably four feet wide by maybe four feet deep,
four to six" (Porter Deposition, Exhibit H, p. 28).
As the EIC of the project, Mr. Carroll's job was to administer the contract and
to ensure that the project followed the plans. Mr. Carroll was on site, about
50 feet away, at the time of the incident. He heard Mr. Lockwood yell, "Look
out!" and turned around in time to see the drill bit hit Claimant (Carroll's
deposition attached to Affidavit of Timothy R. Mandronico, Esq. as Exhibit G,
pp. 93, 106, 109). According to Mr. Carroll, Claimant was not in a ditch at the
time of the incident. Rather, he was kneeling about 20 feet away from the
backhoe and about 8 to 10 feet away from the drill bit in a fairly flat area.
Mr. Carroll stated that there was a difference in elevation between where the
Claimant was kneeling and the area where the backhoe was located of about 3 feet
(Carroll's deposition, Exhibit G, pp. 115 to 119).
Initially, Claimant alleged a cause of action sounding in common law negligence
and causes of action under Sections 200, 240 and 241(6) of the Labor Law of the
State of New York (Claim, ¶20). In his bill of particulars, however,
Claimant responded that he was not alleging a violation of § 240 of the
Labor Law (amended bill of particulars, ¶ 4B, attached to the affidavit of
Daniel P. Fletcher, Esq. as Exhibit B). Defendant now moves for summary
judgment dismissing the remaining allegations of the claim.
Labor Law § 200 and Common Law Negligence
Section 200 of the Labor Law is a codification of the common law duty of an
owner or contractor to provide a worker with a safe place to work (Comes v
New York State Elec. & Gas Corp., 82 NY2d 876, 877). As an owner, the
State may only be held liable if there was a defect in the premises which caused
Claimant's injuries (Farrell v Okeic, 266 AD2d 892, 893), or if the State
exercised some supervisory control over the work being performed (Lombardi v
Stout, 80 NY2d 290; Allen v Cloutier Constr. Corp., 44 NY2d 290).
Claimant admitted in his bill of particulars that there was no defect in the
State's property. Rather, he alleged that a dangerous condition existed by the
location of the drill bit in close proximity to the edge of the trench in which
he was working and that the Defendant had control over this situation
(Claimant's amended bill of particulars, ¶ 3 A-B, attached to the affidavit
of Daniel P. Fletcher, Esq., as Exhibit B). Defendant established that the
State inspectors were responsible for ensuring that the work progressed
according to the contract specifications and had the authority to advise if the
work was not in conformance with the specifications and if the work was not
being performed safely (Carroll's deposition, Exhibit G, p. 96). Thus, for
example, State Inspector Porter on one occasion advised the backhoe operator,
Danny Lockwood, that he was moving the equipment too fast (Porter's deposition,
Exhibit H, p. 31), and according to the Claimant, EIC Carroll on one occasion
told him to put his hard hat on, and on another occasion told him that he was
standing in the wrong place because the bank could cave in (Costich affidavit,
¶ 10). The general authority, however, to control compliance with the
contract specifications or with safety procedures is insufficient to impose
liability under Section 200 of the Labor Law without evidence that the Defendant
had the authority to supervise, control and direct the work being performed at
the time of the incident (Kazmierczak v Town of Clarence, 286 AD2d 955,
956; D'Antuono v Goodyear Tire & Rubber Co. Chem. Div., 231 AD2d
955). Here, there is no evidence that any State representative directed the
activities of the Claimant or of the backhoe operator being performed at the
time of the accident. As a result, Claimant's causes of action under Labor Law
§ 200 and under common law negligence are dismissed (see
Fisher v WNY Bus Parts, 12 AD3d 1138; Piccolo v St. John's Home for
the Aging, 11 AD3d 884).
Labor Law § 241(6)
Labor Law §241(6) imposes a nondelegable duty on owners and contractors to
provide reasonable and adequate protection to workers who are engaged in
construction, excavation or demolition (Nagel v D & R Realty Corp.,
99 NY2d 98; Comes v New York State Elec. & Gas Corp., 82 NY2d 876).
Unlike other sections of the Labor Law, the Claimant does not have to prove that
the owner or contractor exercised supervision or control over the work being
performed (Long v Forest-Fehlhaber, 55 NY2d 154). The Claimant must,
however, allege and prove that the owner or contractor violated a regulation of
the Commissioner of Labor of the State of New York which sets forth a specific,
as opposed to a general, standard of conduct (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494). The violation of a specific standard of
conduct is some evidence of negligence which is to be considered with other
relevant evidence (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343). The
Claimant must also prove that the violation of the specific regulation was a
proximate cause of the injuries (Ares v State of New York, 80 NY2d 959).
Claimant has alleged that the Defendant violated Industrial Code regulations:
12 NYCRR §§ 23-4.3; 23-4.2(g) and 23-4.2(k), as well as certain
regulations promulgated under the Occupational Safety and Health Act (OSHA): 29
CFR §§ 1926.651(c)(2); 1926.651 (f); 1926.651(j)(2); 1926.651(k)(1)
and 1926.651(k)(2). A violation of an OSHA regulation, however, does not impose
a nondelegable duty on an owner or a contractor and may not be used as the basis
of a Labor Law §241(6) cause of action (Pellescki v City of
, 198 AD2d 762, lv denied
With respect to the Industrial Code
regulations relied upon by the Claimant, Defendant alleges that they are either
too general to form the basis of a Section 241(6) violation, or are inapplicable
to the facts of the case.
12 NYCRR §23-4.3
Section 23-4.3 of the Industrial Code, entitled "Access to excavations"
Ladders, stairways or ramps constructed in compliance with this Part (rule)
shall be provided in every excavation more than three feet in depth for safe
access and egress. Such ladders, stairways or ramps shall be installed in
sufficient number and in such locations as to be readily accessible to any
person wishing to enter or leave such excavation without more than 25 feet of
The accident herein did not occur on a ladder, stairway or ramp providing
access to an excavation. As a result, Industrial Code regulation 23-4.3 is
inapplicable and the Defendant's motion for summary judgment dismissing
Claimant's §241(6) cause of action based on a violation of this regulation
is granted (Doty v Eastman Kodak Co.
, 229 AD2d 961, lv dismissed in
part and denied in part
12 NYCRR 23-4.2(g)
Industrial Code regulation 23-4.2(g) provides:
All sides or banks, slopes and areas in and adjacent to any excavation shall be
stripped and cleared of loose rock or any other material which may slide, fall,
roll or be pushed upon any person located in such excavation.
Regulation 23-4.2(g) has been held to be sufficiently specific to form the
basis of a Section 241(6) cause of action (see Gampietro v
Lehrer McGovern Bovis, 303 AD2d 996, 997). Defendant alleges, however, that
regulation 23-4.2(g) is inapplicable because regulation 23-4.2 et seq.
applies only to trench or area excavations 5 feet deep or deeper (see
generally Magnuson v Syosset Community Hosp., 283 AD2d 404, 405),
and that according to the deposition testimony of Dennis Carroll, the area was
not at least 5 feet deep. The Claimant testified, however, that the area was at
least 5 feet deep and the State's Inspector, Brenda Porter, testified that the
area was 4 to 6 feet deep. Viewing the evidence in a light most favorable to
the Claimant as the nonmoving party, and recognizing that the Court's function
with respect to a motion for summary judgment is issue spotting and not issue
determination, the Court finds that a question of fact exists as to the
applicability of Section 23-4.2(g) sufficient to defeat Defendant's motion for
summary judgment (Barr v County of Albany, 50 NY2d 247, 253).
12 NYCRR 23-4.2(k)
Industrial Code §23-4.2(k) provides:
Persons shall not be suffered or permitted to work in any area where they may be
struck or endangered by any excavation equipment or by any material being
dislodged by or falling from such equipment.
Defendant argues that this regulation is not specific enough to form the basis
of a Section 241(6) cause of action. Claimant argues that it is specific
enough. Both sides cite case law to support their opposing viewpoints.
Defendant relies on Webber v City of Dunkirk (226 AD2d 1050). In
Webber, a worker was injured when a backhoe suddenly moved forward and
one of its treads struck the worker on the back of his leg. The Fourth
Department held that the Court below properly determined that regulation 12
NYCRR 23-4.2 (k) was "not sufficiently specific to support a cause of action
under Labor Law §241(6)" (Webber v City of Dunkirk,
supra at 1051). Webber has never explicitly been overruled.
Claimant, on the other hand, relies on another Fourth Department case,
Matter of Fischer v State of New York (291 AD2d 815). In Fischer,
a worker was injured when he was struck by a piece of concrete that fell into
the excavation where he was installing water pipes. While not specifically
referring to subsection (k) or to any individual subsection, the Fourth
Department in Fischer concluded that 12 NYCRR 23-4.2 was sufficiently
specific to support a Section 241(6) cause of action. At first blush, the
Fourth Department's holdings in Webber and in Fischer appear to be
incompatible. In rendering its decision in Fischer, however, the Fourth
Department relied upon its earlier decision in Adamczyk v Hillview Estates
Development Corp. (226 AD2d 1049) as authority for its holding. Only by
reviewing and contrasting the Webber decision with the Adamczyk
decision, can these decisions be reconciled.
First, it is important to note that both the Webber
decision and the
decision were decided by the same panel of Judges on the same
day, April 19, 1996. We must assume, therefore, that the Fourth Department
intended these cases to be read harmoniously. Second, the Fourth Department in
did not hold that all of the individual subsections of
regulation 23-4.2 were specific enough to form the basis of a Section 241(6)
cause of action. Rather, the Fourth Department in Adamczyk
"the specific safety standards
set forth in 12 NYCRR 23-4.2..." were not
applicable to the facts in that case (emphasis added) (Adamczyk v Hillview
Estates Development Corp.
at 1050). The holding in
is more limited than it has been interpreted as being. When
is read in conjunction with Webber
, it is clear that the
Fourth Department in Adamczyk
was only holding that those subsections of
23-4.2 previously determined to be specific enough to support a Section 241(6)
cause of action (as opposed to the insufficiently specific subsection [k] relied
upon by the plaintiff in Webber
) were inapplicable given the facts of
case. Viewed in this light, the holdings in Webber
and in Adamczyk
are consistent. Because Webber
has never been
explicitly overruled, it remains good law.
Accordingly, Defendant's motion for summary judgment dismissing Claimant's
Section 241(6) cause of action based on an alleged violation of 12 NYCRR
23-4.2(k) is granted, as that regulation is not sufficiently specific to form
the basis of such a cause of action (Webber v City of Dunkirk
, 226 AD2d
; Friot v Wal-Mart Stores
, 240 AD2d 890;
DeFilippo v State of New York
, Ct Cl, UID No. 2000-001-021 [Claim No.
98313, Motion No. M-61044], June 30, 2000, J.
. Garcia v Silver Oak
, 298 AD2d 555; and Elezaj v Carlin Const. Co.
, 225 AD2d 441,
on other grounds, 89 NY2d
Based on the foregoing, it is hereby
ORDERED, that Defendant's motion for summary judgment dismissing Claimant's
common law negligence cause of action and Claimant's causes of action based on
Labor Law §200 and on §241(6) is granted, but only to the extent that
the Section 241(6) cause of action was based on an alleged violation of
regulations 12 NYCRR 23-4.3 and 23-4.2(k).
The Court will schedule a conference to set a date for trial on Claimant's
remaining cause of action under Section 241(6) of the Labor Law based on an
alleged violation of regulation 12 NYCRR 23-4.2(g).
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of
A violation of an OSHA regulation may be
considered as some evidence of negligence under Labor Law §200 and the
common law (Landry v General Motors Corp., Cent. Foundry Div.
, 210 AD2d
898). Here, however, I dismissed the Labor Law §200 cause of action.
Claimant does not address regulation 23-4.3
anywhere in his opposing papers and has apparently abandoned this regulation as
a basis for liability under Labor Law §241(6).
If the Fourth Department had intended to
implicitly overrule its decision in Webber and find that subsection (k) of
regulation 23-4.2 is sufficiently specific to form the basis of a Section 241(6)
cause of action, it would have done so with more specific language than is
contained in Adamczyk
, or their progeny.
Selected unpublished decisions and orders of
the Court of Claims are available via the internet at
Claimant correctly noted in his memorandum of
law that the First and the Second Departments have determined that regulation
23-4.2(k) was sufficiently specific. Claimant also correctly noted that the
First Department's decision in Elezaj v Carlin Const. Co.
(225 AD2d 441)
was affirmed by the Court of Appeals (89 NY2d 992). Claimant neglected, however,
to indicate that the Court of Appeals' affirmance was on other grounds. In
fact, the Court of Appeals specifically noted that the argument raised on appeal
that regulation 23-4.2(k) was too general to support a Section 241(6) cause of
action had not been preserved for review and that, accordingly, the Court of
Appeals had "... no power to review either the unpreserved error or the
Appellate Division's exercise of discretion in reaching that issue" (Elezaj v
Carlin Const. Co.
, 89 NY2d, supra
at 994-995 [citing
Feinberg v Saks & Co.
, 56 NY2d 206, 210-211]).