New York State Court of Claims

New York State Court of Claims

RECTOR v. THE STATE OF NEW YORK, #2004-015-377, Claim No. 106302, Motion Nos. M-67624, CM-67707


Court found material issue of fact as to claimant's culpable conduct in not wearing protective eye wear precluded partial summary judgment on issue of liability on claimant's Labor Law § 241 (6) cause of action. Court granted defendant's cross-motion for summary judgment dismissing the Labor Law § 200 and common law negligence causes of action.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Bendall & MednickBy: Kevin S. Mednick, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 20, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for partial summary judgment determining the defendant's liability pursuant to Labor Law § 241 (6) is denied. The defendant's cross-motion for summary judgment seeking dismissal of claimant's causes of action based upon Labor Law § 200 and common law negligence is granted. The instant claim seeks $3,000,000 in damages arising from an incident in which the claimant lost the vision in one eye as a result of an accident at a State owned construction site. At the time of his injury on October 16, 2000 claimant was employed as a laborer/operator on the Bash Bish Bridge Rehabilitation and Trail Construction Project at the Taconic State Park, a facility owned by the State of New York and operated by the New York State Office of Parks, Recreation and Historic Preservation. Claimant, fellow employee John Spraker and claimant's immediate supervisor Frederick Feurer were at the time of claimant's injury engaged in cutting and attaching wood decking to a bridge spanning the Bash Bish Creek. Claimant was injured when a 20D nail he was hammering broke or ricocheted striking him in his left eye.

On the motion claimant alleges that he was not provided with any type of protective eye wear at the construction site and that the defendant's failure to provide him eye protection constitutes a violation of Labor Law § 241 (6) and section 23-1.8 (a) of the New York Industrial Code (see 12 NYCRR 23-1.8 [a]). It is further alleged that violation of the cited regulation was a proximate cause of claimant's injury and that the State of New York is vicariously liable for his injury as owner of the site. Claimant also asserts causes of action predicated on a violation of Labor Law § 200 and common law negligence.

The State opposed the motion alleging that there are numerous factual issues which preclude summary judgment on the issue of liability pursuant to Labor Law § 241 (6) including the applicability of the stated regulation; whether the regulation was violated and, if so, whether the violation was a proximate cause of claimant's injuries; and the degree to which claimant was comparatively negligent. The State also cross-moved for summary judgment seeking an order dismissing claimant's causes of action based upon Labor Law § 200 and common law negligence.

The Court of Appeals in Rizzuto v Wenger Contr. Co., 91 NY2d 343 at p. 350 observed:
[S]ection 241 (6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault (see, Allen v Cloutier Constr. Corp., supra; see also, Monroe v City of New York, 67 AD2d, at 104, supra; PJI 2:216A, at 807-809 [1997]).

An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241 (6), including contributory and comparative negligence (see, Long v Forest-Fehlhaber, supra, at 159-161; Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 502, n 4; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521-522, rearg denied 65 NY2d 1054).
Here the claimant specifically relies upon the provision of the Industrial Code found at 12 NYCRR 23-1.8 (a) which provides:

Section 23-1.8 Personal protective equipment.
(a) Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.

While this regulation has been found to be adequately specific for purposes of stating a cause of action under Labor Law § 241 (6) (see Galawanji v 40 Sutton Place Condominium, 262 AD2d 55; cf., McLoud v State of New York, 237 AD2d 783; Crawford v Williams, 198 AD2d 48, lv denied 83 NY2d 751) the violation thereof constitutes only "some evidence of negligence" (Wells v British American Dev. Corp., AD2d , 2003 WL 22966298; Paolangeli v Cornell Univ., 296 AD2d 691). In Rizzuto, supra the Court of Appeals held at page 351 that a regulatory violation is not determinative of the issue of negligence but reserves for resolution by the fact finder "the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances". Thus a violation of the regulation without more does not provide a sufficient basis for the determination of an owner's or general contractor's liability as a matter of law (Long v Forest-Fehlhaber, 55 NY2d 154).

The Third Department has held that a cause of action premised upon a violation of Labor Law § 241 (6) "does not lend itself to summary judgment" (Shaheen v International Business Machs. Corp., 157 AD2d 429, 433; cf., Rodriguez v City of New York, 232 AD2d 621; Mendoza v Cornwall Hill Estates, 199 AD2d 368). In the instant matter, even assuming claimant has established that the cited regulation was violated there remain questions of fact concerning the extent to which the claimant's own negligence caused or contributed to his injuries. Unlike a cause of action premised upon a violation of Labor Law § 240 (1) a claimant's comparative negligence is a defense to a Labor Law § 241 (6) action (Zimmer v Chemung Cnty. Performing Arts, 65 NY2d 513; Long v Forest-Fehlhaber, supra). Where evidence of comparative fault exists summary judgment is inappropriate (Daniels v Potsdam Cent. School Dist., 256 AD2d 897; 898; see also, Wells v British American Dev. Corp., supra; Paolangeli v Cornell Univ., supra; Shaheen v International Business Machs. Corp., supra; Fisher v Brown Group, Inc., 256 AD2d 1069).

The defendant asserted in paragraph (2) of its answer that "[t]he injuries or damages complained of were caused in whole or in part by claimant's own culpable conduct . . . ". In support of this contention the defendant has offered in opposition to the claimant's motion a copy of a document on CFI Construction, Inc. letterhead entitled "Company Safety Policy." Paragraph (3) of the document relates, in part, that "[a]ll necessary personal protective equipment such as eye/ear wear, gloves and other protective equipment must be worn." The document is signed by the claimant and dated May 14, 1999. Further, the defendant has offered the affidavit of Frederick Feurer, foreman at the Bash Bish project, in which Mr. Feurer relates that safety glasses were available on the dashboard of his truck and that the claimant rode to the job site in Mr. Feurer's truck on many occasions. This proposition is supported by the deposition testimony of John Spraker, offered by claimant in support of the motion, who states that he and the claimant often rode to job sites in Mr. Feurer's pickup truck and that safety glasses were "always" available on the vehicle's dashboard. Finally, the claimant's deposition testimony, also offered in support of the motion, establishes that the claimant rode to the job site in Mr. Feurer's pickup truck on the day he was injured and that he, the claimant, was aware of the risk that nails might ricochet or kick back while being hammered. Taken together, the proof establishes a question of fact as to the existence and/or extent of claimant's comparative negligence requiring denial of the motion for partial summary judgment.

The defendant's cross-motion seeking dismissal of claimant's Labor Law § 200 and common law negligence causes of action must, however, be granted.

It is well settled that an owner of property cannot be held liable under Labor Law § 200 when the claimant's injury results from the method of work prescribed by the contractor or results from equipment supplied by the contractor if the owner did not exercise supervisory control over the injured worker (Comes v New York State Elec. & Gas, 82 NY2d 876; Bailey v Hammedani, 241 AD2d 645; Blessinger v Estee Lauder Cos., 271 AD2d 343). Supervisory control must be more than general oversight of the timing and quality of the work (Gonzalez v United Parcel Serv., 249 AD2d 210; Riccio v Shaker Pine, 262 AD2d 746). It has further been held that the authority of an owner's representative to stop the work where a contractor fails to address a safety concern is not sufficient to establish supervisory control for purposes of imposing liability pursuant to Labor Law § 200 or common law negligence (Ricotta v Praxis Biologics, 265 AD2d 878).

Claimant's opposition to the cross-motion failed to demonstrate that the defendant's representative supervised or controlled "the very manner or methods by which [claimant] did his work or that it exercised direct supervision and control over his work at the time of the accident (see, Ryder v Mount Loretto Nursing Home, 290 AD2d 892, 894 [2002]" (Shields v General Electric, ____ AD2d ____ [3rd Dept., January 15, 2004]). Accordingly, liability against the State as owner of the construction site under Labor Law § 200 or principles of common law negligence cannot be found. Defendant's cross-motion is therefore granted and those causes of action are dismissed.

Trial on the issue of liability shall proceed as scheduled.

January 20, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 7, 2003;
  2. Affidavit of Kevin S. Mednick sworn to November 7, 2003 with exhibits;
  3. Affidavit of Steven M. Myers sworn to November 6, 2003;
  4. Notice of cross-motion dated November 24, 2003;
  5. Affirmation of Kathleen M. Resnick dated November 24, 2003 with exhibit;
  6. Affidavit of Frederick Feurer sworn to November 19, 2003;
  7. Affidavit of James Holdridge sworn to November 18, 2003 with exhibit;
  8. Affidavit of Kevin S. Mednick sworn to November 26, 2003 with exhibits;
  9. Affirmation of Kathleen M. Resnick dated December 1, 2003.