New York State Court of Claims

New York State Court of Claims

ORTLIEB v. THE STATE OF NEW YORK, #2004-015-591, Claim No. 105460


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:
Setright & Longstreet, LLPBy: Michael J. Longstreet, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & FishlingerJames J. Leyden, Esquire, appearing
Third-party defendant's attorney:

Signature date:
February 11, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of the above captioned matter was bifurcated by Order of the Court dated June 27, 2003 and this decision addresses only the issue of liability.

The facts surrounding the incident in which claimant was injured are not controverted. On November 14, 2000 claimant was employed by Syracuse Constructors, Inc. as a pipe layer engaged in the installation of a water pipeline for the Town of Malone. At approximately 1:15 p.m. claimant was in a trench running parallel to State Route 11 east of its junction with County Route 24 when a twenty foot section of pipe weighing approximately 850 pounds rolled into the trench striking the claimant and causing injury.

Claimant alleged liability against the State of New York as owner of the construction site pursuant to Labor Law § 240 (1). Prior to trial claimant moved for partial summary judgment on the issue of liability but the motion was denied due to claimant's failure to offer proof that the subject accident occurred on land owned by the State or within the State's right of way. Absent such proof the Court found that it was unable to determine the State's liability pursuant to Labor Law § 240 (1) as a matter of law.

At the liability trial held on December 16, 2003 various exhibits were offered and received in evidence including a survey map of the area, an aerial photograph and a photocopy of a New York State Department of Transportation (DOT) highway work permit authorizing water main installation work within the right of way along State Route 11. Claimant was called as the sole witness and testified to the happening of the accident. Specifically, he testified that on the morning of the accident he and his fellow employees, as part of a pipe stringing operation, had placed the subject pipe at the top of an earthen incline and shored it in place with a one foot section of 4" x 4" lumber and a rock. That afternoon claimant was working in the trench when the pipe rolled down the incline and into the trench where it struck the claimant.

Claimant described the trench as running parallel to State Route 11 and located 20 - 30 feet from the white pavement stripe as shown in various photographs received in evidence. He further testified that State inspectors were present at the site of the water main installation on a regular basis to ensure that the contractor was not digging too close to the highway.

On cross-examination the witness testified that at the time of the accident the only people in the immediate vicinity were claimant and Richard Burdick who was involved in excavating the trench with a trackhoe. Neither his supervising foreman, the project superintendent, nor the State inspector was present at the time of the accident. He further testified that he had been instructed by his foreman not to use a trench box in the excavation until after work involving a telephone wire had been completed.

At the conclusion of claimant's testimony both parties rested and stipulated on the record that the defendant's answer would be deemed amended to assert an offset pursuant to General Obligations Law § 15-108 as an affirmative defense.

The applicability of Labor Law § 240 (1) to the instant facts was addressed by the Appellate Division, Third Department in the companion matter of
Ortlieb v Town of Malone (307 AD2d 679) in which the Court affirmed a grant of summary judgment stating at p. 680:
[P]laintiff was exposed to an elevation-related hazard because his work site was positioned below the level where the pipe was secured and his injury was the result of "being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co. [81 NY2d 494] supra at 501; see Van Eken v Consolidated Edison Co. of N.Y., 294 AD2d 352, 353; Orner v Port Auth. of N.Y. & N.J., 293 AD2d 517, 517-518; Outar v City of New York, 286 AD2d 671, 672-673; Panattoni v Inducon Park Assoc., 247 AD2d 823).
The Court finds similarly in this matter. The claimant has met his burden of showing defendant's ownership of the accident site, a contention not actively contradicted by the defendant. Claimant has also established that he was exposed to a gravity related risk and was injured in such a manner as to subject the defendant owner to liability under Labor Law § 240 (1). Absolute liability thus attaches requiring the entry of an interlocutory judgment against the defendant as to liability (
Zahn v Pauker, 107 AD2d 118).
Unless the parties agree to settle the matter and so advise the Court a trial on the issue of damages shall be scheduled as the Court calendar permits.

The Clerk shall enter an interlocutory judgment in accord with this decision.

February 11, 2004
Saratoga Springs, New York

Judge of the Court of Claims