RECTOR v. THE STATE OF NEW YORK, #2004-015-595, Claim No. 106302
Court found State liable for 50% of claimant's eye injury sustained when it was
struck by a nail which ricocheted upon being struck by a hammer. State violated
Industrial Code (12 NYCRR 23-1.8[a]) by failing to require claimant to use
protective eyewear while engaged in activity which could endanger the eye.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Silverman, Silverman and Seligman
By: Bendall & MednickBy: Kevin Mednick, Esquire
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
May 26, 2004
See also (multicaptioned
The claim herein states a cause of action pursuant to Labor Law § 241
asserting that a contractor performing work at a State owned construction site
failed to provide the claimant protective eyewear allegedly required pursuant to
the Industrial Code (12 NYCRR 23-1.8[a]). Claimant was injured when a nail he
was hammering ricocheted and struck him in the left eye.
The first witness called at trial was Kenneth Lutters who, at the time of
claimant's injury on October 16, 2000, was employed as the Capital Facilities
Manager for the Taconic Region of the New York State Office of Parks, Recreation
and Historic Preservation. Mr. Lutters described the work being performed by
claimant's employer CFI Construction (CFI) at what was generally referred to at
trial as the Bash Bish Bridge project
. Mr. Lutters related that CFI entered into a contract with the State of New
York to rehabilitate a bridge at the Bash Bish State Park in Copake, New York.
The work included raising one of two abandoned railroad bridges and, once the
structures were equalized, installing wood decking, railings and pavement to
establish a pedestrian and bike path. Mr. Lutters stated that his
responsibilities included supervising James Holdridge and Armando Alvarez who
were employed by the State and responsible for overseeing work on the Bash Bish
Bridge project but did not involve oversight of safety procedures employed in
performing the work. The witness stated that Mr. Holdridge acted as the
engineer in charge of the project and as such interacted directly with the
contractor and crew but was not responsible for insuring proper safety practices
at the site. Armando Alvarez was a junior engineer employed by the State who,
according to the witness, was responsible for day-to-day oversight of the
project and charged with the duty of preparing daily progress reports and
updating the witness and Mr. Holdridge regarding the progress of the work. The
daily reports included information regarding the type of work performed, the
equipment used, the number of employees on the site and the number of hours
worked. According to Mr. Lutters, Alvarez was not required to report regarding
safety issues at the site.
On cross-examination the witness stated that Mr. Alvarez had other
responsibilities in addition to the Bash Bish Bridge project although he agreed
that the bridge project was Alvarez's primary responsibility. He also related
that the daily inspection reports prepared by Mr. Alvarez were not intended to
address safety issues but rather to inform Mr. Lutters regarding problems in the
progress of the work.
The next witness called was James Holdridge who was employed in the year 2000
as a park engineer by the New York State Office of Parks, Recreation and
Historic Preservation. He was the engineer-in-charge of the Bash Bish Bridge
project and stated that he was responsible for insuring that construction was
performed according to specifications. Mr. Holdridge testified that at a
pre-construction meeting held on June 2, 2000 and attended by Kenneth Lutters
and a representative of CFI Construction the witness instructed that OSHA and
State safety procedures were to be followed. The claimant herein did not attend
the preconstruction meeting. Mr. Holdridge testified that at one point during
the construction he instructed paint cleaning personnel working on the bridge to
use safety harnesses but does not recall any other instance in which he
discussed the use of safety equipment with either the contractor or any
subcontractor. The witness described his job as insuring that the work was
performed according to the terms of the contract and specifications but did not
include safety enforcement.
On cross-examination Mr. Holdridge stated that he was at the job site once or
twice during the time that wood decking was being fastened to the bridge. He
also testified that although he signed each of the daily reports prepared by Mr.
Alvarez he did not review the reports on a daily basis.
The claimant next called John Spraker who was employed by CFI Construction at
the time of claimant's injury. He, together with the claimant and Fred Feurer,
comprised the work crew involved in attaching wood decking to the bridge
structures. According to Mr. Spraker on October 16, 2000 he was working with
the claimant and Fred Feurer, the crew foreman, attaching wood decking using a
hammer and nails. He testified that he had been working at the site "a week or
so" prior to October 16, 2000. On that date he was wearing a hard hat and
safety harness but was not wearing safety glasses which he stated were not
required to be used by CFI. The witness testified that he had never been
instructed to wear protective eyewear by Mr. Feurer either at the Bash Bish
Bridge project or at any other work site. He stated that to his knowledge CFI
did not require workers such as the claimant or himself to wear eye protection
when hammering nails. Mr. Spraker testified that safety glasses were generally
kept in Mr. Feurer's truck but that neither he nor the claimant were instructed
to wear the glasses either by individuals employed by the State or by anyone
from CFI. Neither the claimant nor the witness wore protective eyewear at any
time while at the Bash Bish Bridge project although Mr. Feurer sometimes wore
eye protection. Mr. Spraker testified that he would have worn protective
eyewear had he been instructed to do so and that at the time of the claimant's
accident he was wearing a hard hat and safety harness. Finally, the witness
stated that Mr. Feurer worked in close proximity to both he and the claimant
during the time the crew was working at the Bash Bish Bridge site.
The witness testified that he has attended safety meetings held by CFI which,
according to the witness, did not actually involve a meeting but rather the
distribution of a piece of paper which would be signed and returned. Mr.
Spraker related that the meetings lasted only so long as it took for the workers
to sign their names on the safety information sheets provided, that the
information sheets were generally signed without having been read or discussed
and that workers did not retain copies of the sheets. He testified that one
week following the claimant's accident he and other workers received a
memorandum with their paychecks which stated that it was CFI's policy that
workers should wear protective eyewear when hammering nails or cutting wood.
Mr. Spraker further testified that he left his employment with CFI
Construction, in part, because he was upset at what he perceived to be the poor
treatment of the claimant by CFI. He described claimant as a good friend and
related that he had acted as a reference for claimant with regard to his initial
employment with CFI.
On cross-examination the witness testified that he and the claimant were good
friends and that he left his job with CFI following claimant's accident at least
in part because he was unhappy with the treatment of claimant by CFI.
The claimant next called Stephen Myers who testified that he is a licensed
engineer in both New York and Vermont as well as a certified code enforcement
official in the State of New York. Mr. Myers also testified that he has worked
as an inspector for a private engineering firm hired by the State of New York in
relation to various highway projects. According to the witness his
responsibility as an inspector was to insure that the contractor completed the
work required by the plans and specifications and that the work was accomplished
in a safe manner. Mr. Myers stated that he was familiar with section 23-1.8 of
the Industrial Code and safety practices at construction sites in general.
Mr. Myers testified that he reviewed various materials pertaining to the
claimant's accident. As a result of his review, he concluded that NYCRR 23-1.8
required the use of eye protection whenever there is the possibility of injury
to the eyes which he stated "is pretty much all of the time you are on a
construction project". Myers was familiar with the manner in which the claimant
was injured and the work he was performing. He stated his opinion that
hammering a nail created a risk of injury to the eyes in that the application of
force to a nail, if not hit correctly, could cause the nail to splinter or kick
back. It was the witness's opinion to a reasonable degree of certainty that the
failure to provide the claimant eye protection constituted a violation of
section 23-1.8 of the Industrial Code. The witness further testified that in
his opinion the safety measures employed at the site at the time of the
claimant's accident were unreasonable in that although hard hats and safety
harnesses were provided, eye protection was not. Mr. Myers stated that industry
custom at the time of claimant's accident required that eye protection be
provided workers when performing the type of work in which claimant was involved
on October 16, 2000.
On cross-examination Mr. Myers testified that although the claimant was not
engaged in burning, cutting, chipping or grinding materials he was, for purposes
of 12 NYCRR 23-1.8(a), involved in an operation which may endanger the eyes.
The witness testified that this is so because it is always possible that a nail
struck by a metal hammer could fly off or kick back and strike either the
individual hammering the nail or others in close proximity to him or her. He
stated that it is commonly understood in the construction industry that nails
have the potential to kick back or ricochet and that persons performing
carpentry work over a period of time would or should be aware of that
Mr. Myers agreed that the opinion he related on direct examination, that
safety measures at the job site were unreasonable, would be subject to change
if safety glasses had been available at the job site and the claimant had been
directed by his foreman to wear the glasses but had refused. The claimant,
Christopher Rector, testified next. Mr. Rector stated that at the time of his
injury on October 16, 2000 he had been employed by CFI Construction for
approximately 2 years and, for most of that period, worked directly with Fred
Feurer. He acknowledged that when he began working for CFI he signed certain
papers including defendant's Exhibit A, a document entitled CFI Construction
Company Safety Policy which is dated May 14, 1999 and bears claimant's
signature. It was noted that although the safety policy required that hard
hats be worn at all times no such mandate was provided with regard to the
provisions of item number 3 which provides for the wearing of necessary
protective gear, including eyewear. According to Mr. Rector he did not review
the contents of Exhibit A with a representative of CFI Construction and no one
from CFI explained to the claimant when protective eyewear was required to be
worn or that such eyewear should be worn when hammering nails.
Claimant also stated that he signed various safety-related documents during the
course of his employment with CFI. The documents would be distributed to the
workers during coffee break or on Friday when they were completing their time
reports. These documents would not generally be read but would be signed and
returned. This process did not include any discussion regarding the content of
the documents and took only so long "as it took for me to write my name".
Claimant then reviewed defendant's Exhibit B containing documents entitled
Weekly Safety Meeting for the Construction Industry which he confirmed were the
documents he signed and returned as related above.
Claimant next reviewed defendant's Exhibit C, a weekly safety meeting sheet
entitled "PPE-Eye Protection" which is dated June 21, 1999 and signed by the
claimant. Mr. Rector testified that Exhibit C was executed in the manner
described earlier and that there was no meeting or substantive discussion
concerning the use of eye protection.
Claimant next described the accident giving rise to his injuries. According to
the witness he was hammering 20d galvanized nails approximately 4 inches in
length into a piece of pressure- treated 2" x 6" wood. The claimant testified
it is harder to drive a nail into pressure-treated wood than it is into dry
wood, especially when the pressure-treated lumber is wet. As described by the
witness, he, Mr. Spraker and Fred Feurer had been attaching wood decking to the
bridge for approximately six days prior to October 16, 2000. Claimant and Mr.
Spraker were wearing hard hats and safety harnesses but neither was wearing
safety glasses on either the date of claimant's injury or at any time while at
the Bash Bish Bridge site. Mr. Rector testified that both he and Mr. Spraker
would nail the wood decking to the bridge while Fred Feurer cut the lumber to
length. During the six days preceding October 16, 2000 Mr. Feurer worked
approximately ten feet from the claimant and Spraker. Although Mr. Feurer
occasionally wore safety glasses the claimant testified that at no time was he
instructed to wear protective eyewear nor did he observe such an instruction
being provided to Mr. Spraker. Mr. Rector testified that he was not aware
safety goggles were available at the job site and that had he been instructed
by Mr. Feurer to wear protective eyewear he would have complied with that
instruction. He testified that he had seen Armando Alvarez at the job site only
once and that Mr. Alvarez never instructed him to put on safety glasses despite
the fact that Mr. Alvarez was within five feet of the claimant.
The claimant concluded his direct testimony by stating that at no time while on
the Bash Bish Bridge work site was he ever instructed by representatives of the
State of New York or CFI Construction to wear protective eyewear.
On cross-examination claimant testified that he had received instruction
regarding safety procedures including the importance of wearing safety glasses
on construction sites and the proper use of safety glasses while a student at
the Kenneth A. Smith Vo-Tech Center. He received similar instruction while a
student at Fulton Montgomery Community College studying construction technology.
Mr. Rector testified that he recalled signing the CFI Construction Company
safety policy (Defendant's Exhibit A) on May 14, 1999 and acknowledged that the
document contains the following language immediately above his signature:
I have read and understood both of the policies and procedures listed below as
presented by CFI Construction, Inc.:
1. Safety Policy
2. Hazardous Chemical Policy
He denied that he attended weekly safety meetings stating "we were handed a
sheet of paper and we signed it. There was no meeting. No conversation about
it really at all." Defense counsel next asked claimant to examine the weekly
safety meeting sheets for July 11 and July 18, 2000 which are part of
defendant's Exhibit B. Claimant denied that he was the individual who had
marked certain information contained on both sheets. Counsel next requested
that claimant review the weekly safety meeting sheet for June 21, 1999
(defendant's Exhibit C) entitled "PPE - Eye Protection". Claimant agreed that
the document includes "[f]lying particles from chipping, or hammering on
concrete, stone, and metal" in listing various examples of activities which may
be hazardous to the eyes.
Claimant testified that he drove to and from the Bash Bish Bridge project site
with Fred Feurer and John Spraker. Mr. Feurer was driving a company truck and
the claimant testified that he sat in the back seat each day when traveling to
and from the work site. He testified that he was aware that because pressure
treated wood was harder than untreated lumber there was a risk that a nail might
bounce back when struck.
On redirect examination claimant stated with regard to the CFI Construction
Company safety policy (defendant's Exhibit A) that he did not actually read the
document but signed it in less than 30 seconds. He related that he started work
on the date of his accident at approximately 7:00 a.m. and was injured shortly
after the conclusion of his coffee break which began at 8:45 a.m. During that
period he was hammering nails into the decking without eye protection.
Claimant rested at the conclusion of Mr. Rector's testimony and the defendant
moved to dismiss the claim for failure to state a cause of action. The Court
reserved on the defendant's motion which is now denied.
The defendant's first witness was Fred Feurer who, at the time of trial, had
been employed by CFI as a site superintendent for seven years. Mr. Feurer
testified that Christopher Rector had been a member of his crew since he (Mr.
Rector) started at CFI Construction and was working with the witness during the
summer and fall of 2000. He testified that at the time claimant was injured his
crew had been working at the Bash Bish Bridge project for approximately one week
and that various safety equipment was available at the job site. Although
safety equipment such as fall protection and other tools were kept in a storage
trailer, safety glasses were usually kept on the dashboard of his company truck.
The witness stated that he, John Spraker and Christopher Rector would drive to
and from the job site each day together in Mr. Feurer's truck. He stated that
Mr. Rector and John Spraker would alternate between the front and back seats of
the truck because they usually left for the work site between 4:30 and 5:00 a.m.
and the individual in the back seat was able to rest during the hour long trip
from their meeting place to the work site. Mr. Feurer was then asked the
following question and gave the following response:
Q What did you do, if anything, to make Mr. Spraker and Rector aware that
safety glasses were available?
A Just – They're there. I mean, that's just something that's always
there. We've always used. Always – You have – You need them for
different things that you might happen to be doing. So, they're there. If you
need them, grab them.
The witness could not definitively recall whether claimant was wearing safety
glasses on the morning he was injured. He stated that it was not uncommon to
observe workers who were not wearing safety glasses and that it was his practice
to remind the worker that they needed safety glasses and to direct them to put
the glasses on. He described the weekly safety meetings held at the job site
each Monday as including discussion regarding the topics addressed in the
handout sheets which would be signed by each person on the crew. In fact, Mr.
Feurer testified that if he observed someone who appeared to be merely signing
the document without reading it he would quiz that individual regarding the
subjects addressed in the safety sheet. In response to very specific questions
from defense counsel Mr. Feurer stated, with some equivocation, that he, Mr.
Spraker and the claimant wore safety glasses during each of the days they worked
on the Bash Bish Bridge project.
On cross-examination the witness confirmed that following claimant's accident
he completed a first-aid report in which he was required to explain the
happening of the accident and any causes or contributing factors including the
violation of safety rules. The witness agreed that claimant was not wearing
safety eyeglasses at the time of his injury but safety glasses were not
mentioned in his report which was admitted into evidence as claimant's Exhibit
7. Mr. Feurer agreed that the report does not indicate that claimant was
instructed to wear safety glasses or that he refused any such instruction.
The witness described claimant as a good worker and confirmed that he had the
authority as site superintendent to remove from the job site any employee who
failed to comply with his directions, including the wearing of appropriate
safety equipment. According to Mr. Feurer he and the claimant worked in close
proximity to each other while at the Bash Bish Bridge project prior to October
16, 2000. He confirmed that he was wearing safety glasses on that date and that
he was aware that a worker hammering nails into pressure treated wood could
suffer an eye injury should the nail kick back and strike him or her in the eye.
On redirect examination the witness stated that he did not discipline
Christopher Rector for his failure to wear safety glasses while at the Bash Bish
Bridge site because the claimant was, in fact, wearing glasses. He stated that
he would have instructed Mr. Rector to put his safety glasses on had he observed
him working without them. Mr. Feurer testified that the purpose of the
first-aid report was to inform the home office regarding the way in which the
accident happened and that the report admitted as Exhibit 7 did not mention
claimant's failure to wear safety glasses at the time of the accident because he
was "just writing out what happened and injuries and what we did from there".
Upon questioning by the Court the witness stated that he, Mr. Spraker and the
claimant were attaching decking to the bridge during the week preceding
claimant's injury and that on each of those days both Mr. Spraker and the
claimant were wearing safety glasses.
Defendant's final witness was Luci Fernandez, secretary and treasurer for CFI
Construction. Ms. Fernandez has been working at CFI for approximately 12 years
and was familiar with the claimant. Ms. Fernandez stated that she created the
CFI safety policy given to all new employees at the time they were hired. New
employees were required to read and understand the information contained in the
safety policy. According to the witness the company safety policy was in effect
at the time of claimant's hiring in May, 1999 and continued in effect through
October, 2000. Ms. Fernandez stated that CFI Construction holds yearly safety
meetings attended by job superintendents and distributes weekly safety meeting
sheets addressing various safety topics. Memoranda frequently dealing with job
safety topics are also distributed to employees with their paychecks on an as
The witness stated that she spoke to the claimant in the week following his
accident and that the claimant apologized for not wearing his safety glasses
which, according to the witness, claimant stated he knew was wrong.
On cross-examination the witness reiterated her prior testimony stating that
Mr. Rector apologized to her profusely for failing to wear his glasses stating
"I should have had my glasses on". Although Ms. Fernandez stated that she
reported to her insurer that claimant was not wearing safety glasses at the time
of his accident she agreed that the document prepared by the insurance company
in response to her report does not list any contributing factors including the
failure to use safety glasses.
Claimant Christopher Rector was called back to the stand in rebuttal. He
testified that although he did speak to Lucy Fernandez following his injury he
did not at any time apologize for his failure to wear safety eyeglasses nor did
he acknowledge to Ms. Fernandez that he should have had his safety glasses on at
the time of his accident. Following claimant's rebuttal testimony the trial was
It has long been settled that "Labor Law § 241 (6), by its very terms,
duty of reasonable care upon owners and contractors
‘to provide reasonable and adequate protection and safety' to persons
employed in, or lawfully frequenting, all areas in which construction,
excavation or demolition work is being performed (see also
Ross v Curtis-Palmer Hydro-Elec. Co.
, 81 NY2d 494, 501-502; Long v
, 55 NY2d 154, 160, rearg denied
56 NY2d 805;
Allen v Cloutier Constr. Corp.
, 44 NY2d 290, 299-300, rearg denied
45 NY2d 776)" (Rizzuto v Wenger Contr. Co.
, 91 NY2d 343, 348). Unlike a
violation of an explicit and definite statutory provision which demonstrates
negligence as a matter of law, a violation of section 241 (6) is "merely some
evidence which the jury may consider on the question of defendant's negligence"
(Long v Forest-Fehlhaber
, 55 NY2d at 160, quoting Teller v Prospect
, 280 NY 456, 460).
Moreover, the Court of Appeals has made clear that a distinction exists between
Industrial Code provisions which establish general safety standards and those
provisions mandating compliance with concrete specifications (
, Ross v Curtis-Palmer Hydro-Elec. Co.
, 81 NY2d at 505). Even
where a claimant alleges that a concrete specification of the Industrial Code
has been violated he or she must also allege and prove that some party to or
participant in the construction project was negligent and that such negligence
caused claimant's injury (see
, Rizzuto v Wenger Contr. Co.
at 350). When such a showing has been made "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
, Monroe v City of New York
, 67 AD2d at 104, supra
PJI 2: 216 A, at 807-809 )" (Rizzuto
Of course, an owner or general contractor may assert any valid defense to
liability under Labor Law § 241 (6), including the claimant's comparative
Edwards v C&D Unlimited
, 295 AD2d 310; Fisher v Brown Group
256 AD2d 1069).
In the instant case claimant has alleged that the State as owner of the
construction site violated section 23-1.8 (a) which provides as follows:
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.
This section of the Code has been found to be adequately specific for purposes
of stating a cause of action under Labor Law § 241 (6) (
, Galawanji v 40 Sutton Place Condominium
, 262 AD2d 55;
Crawford v Williams
, 198 AD2d 48, lv denied
83 NY2d 751). On its
face the regulatory provision requires not only that protective eyewear be
provided to workers engaged in operations which may endanger the eyes but also
mandates that such protective eyewear be used.
Although the testimony of claimant's foreman Fred Feurer and his co-worker John
Spraker established that safety goggles were available in Mr. Feurer's truck,
use of the goggles was not mandated even though claimant's foreman worked in
close proximity to the claimant and was aware of the risk of eye injury from a
nail kicking back or ricocheting when struck by a hammer. The potential that a
nail might kick back or ricochet and cause injury to a worker's eyes was
recognized by each witness that spoke to the issue and no proof establishing the
absence of any such risk or unforseeability of injury was produced at trial. As
a result, the Court finds that the failure to require claimant to use
protective eyewear while hammering nails into pressure treated lumber exposed
the claimant to a known and foreseeable risk that a nail might ricochet or
kickback and constituted a failure to comply with the requirement of 12 NYCRR
23-1.8 (a) that approved eye protection equipment shall be used by persons
engaged in an activity "which may endanger the eyes".
Under these circumstances the Court finds that section 241 (6) of the Labor Law
and section 23-1.8 (a) of the Industrial Code were violated and that such
violation was a proximate cause of the claimant's injury (
Fresco v 157 E. 72nd St. Condominium
, 2 AD3d 326; Cappiello v
Telehouse Intl. Corp. Of Am.
, 193 AD2d 478). The Court must, therefore,
impose "ultimate responsibility
for safety practices where such
responsibility actually belongs, on the owner
" (Rizzuto v Wenger
at 348). Accordingly, the defendant as owner of
the site is liable for claimant's injury irrespective of its lack of active
control or supervision of the work site (see
, Leon v Peppe Realty
, 190 AD2d 400, 407; Kelleher v First Presbyt. Church of
, 158 AD2d 946, lv dismissed
75 NY2d 947). However, as noted
above, comparative fault is a defense to a Labor Law § 241 (6) claim
(Long v Forest-Fehlhaber
, 55 NY2d 154, 161; Zimmer v Chemung County
, 65 NY2d 513; Kelleher v First Presbyt. Church of
) and that issue must now be considered.
Claimant candidly admitted at trial that he was aware of the risk that a nail
might kick back or ricochet when struck by a hammer. He also admitted that he
received instructions regarding the importance of wearing safety glasses and
their proper use at construction sites while a student at Kenneth A. Smith
Vo-Tech Center and at Fulton-Montgomery Community College where he studied
construction technology. Additionally, during his employment with CFI
Construction Company claimant received periodic safety meeting sheets including
one dated June 21, 1999 entitled "PPG - Eye Protection" which addressed eye
hazards including those arising from flying particles. Although claimant
acknowledged having signed various weekly safety meeting sheets at trial he
denied having read them. Assuming arguendo the genuineness of claimant's
denial, the unrefuted fact remains that claimant was aware of the risk of
potential injury and was provided safety instructions, including one related to
the use of protective eyewear, which he chose to ignore at his peril. "As a
general matter, a party will not be excused from reading a document that he or
she has signed" (
Blog v Battery Park City Auth.
, 234 AD2d 99, 101; Goldberg v
Manufacturers Life Ins. Co.
, 242 AD2d 175; see also
, Morris v
Snappy Car Rental
, 189 AD2d 115). That rule applies to the safety meeting
sheets signed by the claimant.
Claimant's failure to use available protective eyewear despite his education
and training, his exposure to relevant safety instructions from his employer and
his admitted familiarity with the hazards associated with hammering nails into
pressure treated lumber lead the Court to conclude that claimant was partially
responsible for his eye injury.
After careful consideration of the evidence admitted at trial the Court finds
the defendant vicariously liable for 50% of claimant's injury and claimant
responsible for the remaining 50%. Any and all motions heretofore raised and
not decided are denied.
The Clerk of the Court is directed to enter interlocutory judgment on the
issue of liability. Absent settlement by the parties, the matter will be
scheduled for trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered in accord with this decision.
May 26, 2004
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
By decision and order dated January 20, 2004
the Court dismissed additional causes of action based upon Labor Law § 200
and common law negligence.
Contract # D-002686, Bash Bish Bridge Rehab
& Trail Construction (Exhibit 2).