New York State Court of Claims

New York State Court of Claims

SCHINKEL v. THE STATE OF NEW YORK, #2004-016-029 , Claim No. 102944


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:
Brody, O'Connor & O'Connor, Esqs.By: Scott A. Brody, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Wade, Clark & Mulcahy, Esqs., Of CounselBy: Robert J. Cosgrove, Esq.
Third-party defendant's attorney:

Signature date:
May 25, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claim arising from the injury of Andrew Schinkel while working at a construction site on June 9, 2000. Mr. Schinkel's wife, Laura, is also a claimant, but since Mrs. Schinkel's cause of action derives from her husband's, references herein to "Schinkel" and to "claimant" will mean Andrew Schinkel, and the singular "claimant" will refer to both claimants in describing their position on a particular issue or the use of a case as precedent.

In early June of 2000, Schinkel was an electrician employed by Johnson Electric Company on a contract (Project 258-188) entered into by the State of New York for reconstruction along exits 36 through 40 of the Long Island Expressway (LIE) in Nassau County. Johnson Electric was the subcontractor retained to do all the lighting and traffic signal work; the general contractor was Posillico/Scalamandre (cl exh 4).

Johnson Electric's responsibilities included temporary lighting that was needed for construction. On June 9, claimant together with journeyman electrician Richard Kanusch and foreman Craig Robbins, all employed by Johnson Electric, were working as a crew at the Roslyn Road Bridge and the LIE. Schinkel was injured when his finger got caught between a light pole and a stack of steel girders, severing its tip (cl exhs 2 & 3).

Claimant's causes of action are grounded upon Labor Law §241.6, as well as §200 (see below). Section 241.6 creates a non-delegable duty on the part of the owner of a construction work site (
Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978) to provide "reasonable and adequate protection and safety" for workers, but the provision is implicated only when based upon the violation of a concrete safety standard set by regulation of the Commissioner of Labor (Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 601 NYS2d 49 (1993)).
Claimant cites two regulations as predicates to its §241.6 cause of action:
- 12 NYCCR 23-8, a subpart entitled "Mobile Cranes, Tower Cranes and Derricks," specifically relying upon 23-8.2(c)(3), which relates to load hoisting using a mobile crane; and
- 12 NYCRR 23-1.7(e), which is entitled "Tripping and other hazards."

Hoisting the Lighting Pole (Section 23-8.2(c)(3))

At around 2:45 in the afternoon, claimant and Mr. Kanusch were in the process of removing a temporary light pole, which was located on a median adjacent to the entrance ramp to the eastbound LIE. Kanusch described the basic process in his deposition testimony of April 3, 2003
We have a line truck with a boom on it, and the boom is a cable. We attach the cable to the top of the pole secured. We unloosen the bolts on the bottom of the pole to free it from where it's connected and then we lift it up and we swing it over and we set it down wherever we need to put it.

Kanusch compared his role with that of Schinkel: Kanusch operated the boom truck; claimant's job "was to unbolt the bottom of the pole from wherever it was mounted and to steady the [lighting pole] as I lift it."
Kanusch explained that a nylon sling comes off the line from the boom
: "[T]he cable is metal and then we put a connection on it, it goes to [the] nylon sling so you don't scratch and damage the pole" and then the sling is tightened around the pole. According to Kanusch, the sling is attached to the lighting pole early on in this maneuver, "[b]asically the first thing before the bolts are unloosened" - - in this case by Schinkel.
After the pole was lifted, the two men "moved it to the right about six or eight feet . . . to clear the base [
the concrete barrier], and then we went to shut it down for storage." The pole was set down on top of a 30-foot-long steel I-beam, part of a stack of about six such beams.
Schinkel testified on cross-examination that the pole was at rest:
Q. And when the pole was on the girders, it was stationary, right?
A. Yes.
Q. If it wasn't stationary, you wouldn't have started to work, right?

A. Right.

Continuing with Mr. Kanusch's recollection:
Q. After the pole was laid down flat what did Mr. Schinkel do?
A. I believe the pole started to roll and he just reached out to keep the pole from banging into the steel, and that's when I believe he caught his finger between the pole and the steel.

Kanusch saw claimant's hand get pinched: " After the pole was set down and we were releasing the load to take the lines out, the pole started to roll and he instinctively went to grab [it] . . . "
Section 23-8.2 applies to mobile cranes like those functioning off a truck used at construction sites.[1]
Claimant relies upon paragraph (c)(3) of this section which in its entirety reads:
Loads lifted by mobile cranes shall be raised vertically so as to avoid swinging during hoisting except when such operations are permitted by the capacity chart. A tag or restraint line shall be used when rotation or swinging of any load being hoisted by a mobile crane may create a hazard.

On its face, this regulation does not apply to the credible evidence presented in this case.
Schinkel testified at one point that the lighting pole was leaning against the steel girders, but to this trier of fact, the pole was placed on top of the stack and had come to rest. Claimant cites Smith v Hovnanian Company, Inc., 218 AD2d 68, 71, 633 NYS2d 888, 890 (3d Dept 1995), with facts ("Plaintiff was injured when he was pinned between a wall and the load of sheetrock that was being unloaded from the truck with the extension boom . . . it must have been the movement of the load of sheetrock that caused plaintiff to be pinned to the wall . . . the sheetrock was moving horizontally, as a result of swinging or rotation caused by the extension boom") and analysis ("The regulation was clearly designed to protect workers from the hazards created by the horizontal movement of a load caused by a mobile crane") that do not obtain here.
See also
Penta v Related Companies, L.P., 286 AD2d 674, 730 NYS2d 140 (2d Dept 2001), affirming the finding that §23-8.2(c)(3) did not comprehend a situation in which plaintiff was struck by the hook on a crane when the hook swung free after a coworker released a load of wood delivered to a floor of a building under construction, since it was undisputed that the crane was not hoisting a load at the time of the accident. Compare Stang v Garbellano, 262 AD2d 853, 692 NYS2d 229 (3d Dept 1999), in which a sign being pushed into place would not have become detached from a mobile crane and fallen on plaintiff's arm had a tag line been used.

The Working Area (Section 23-1.7(e)(2))

Claimant next argues that §23-1.7(e)(2) was violated because the small triangular median area was so cluttered with debris that there was no way to lower the light pole such that it would lie flat on the ground. The provision reads as follows:
(e) Tripping and other hazards . . . (2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

A number of photographs were introduced into evidence that witnesses identified as fairly representing how the median area looked when Mr. Schinkel was injured (cl exhs 1C through 1G; exh 1J; and exhibits 1L through 1N). While at least one picture shows a messy area with material that does not apparently have any future purpose (see cl exh 1N)
, in general, what is sitting on the median are items that are to be used, although not as part of the task claimant was involved in that day: orange traffic cones (see, e.g., cl exhs 1C and 1F); white sandbags used to hold down traffic control devices which are mounted or affixed to white hurdle-like frames (see, e.g., cl exh 1D); and girders for bridge rehabilitation at the site (see, e.g.,cl exhs 1E, 1J and 1M).
The plain language of 1.7(e) of Rule 23 does not comprehend the adequacy of this work space. Claimant, as noted, only cites paragraph (2) of subdivision (e). Immediately preceding it, paragraph (1) provides: "Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered." Read together, it is clear that the focus of subdivision (e) of §23-1.7 is tripping and cuts or punctures from sharp projections or objects.
Claimant cites the following cases, which offer insufficient support for his position that the cramped Roslyn Road working area, caused or exacerbated by the kinds of things in the median, implicates §23-1.7(e):
Laboda v VJV Development Corp., 296 AD2d 441, 745 NYS2d 67 (2d Dept 2002); and Faulkner v Allied Manor Road Company, 306 AD2d 224, 760 NYS2d 853 (1st Dept 2003). Laboda is distinguishable as involving a trip and fall over bricks which the Second Department described as "strewn in front of the house he was constructing . . . " In the second case, the triable issue in the First Department's vacating the grant of summary judgment to the defendant was whether Mr. Faulkner tripped over old roofing material while he was installing new roofing.
In Smith v Hovnanian, supra, which claimant cites in support of his position on the mobile crane load-hoisting provision of Rule 23, the Third Department strongly suggests that if a cause of action exists based upon a constricted work area, claimant must look beyond §241.6 of the Labor Law: "that the area where the sheetrock was to be unloaded was so cluttered with debris that there was no safe place to unload the sheetrock . . . is, in our view, sufficient to state a cause of action based upon a violation of the common-law safe place to work requirement (see, Labor Law §200). . . " 218 AD2d at 72, 633 NYS2d at 890.

Labor Law §200

Liability under §200 of the Labor Law attaches only to a defendant who exercises control or supervision over the job site. In
Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352, 670 NYS2d 816, 821 (1998), the Court of Appeals enunciated the standard as whether such defendant has "the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (emphasis and citations omitted).
In our case, the State of New York had an engineer in charge, Bruce Ogurek, who testified that while he visited the Roslyn Road location daily, he did not supervise or control any work performed by the employees of Johnson Electric (including specifically that done on June 9, 2000). The State had hired outside consultant firms to do inspections, entities that for these purposes were agents of the defendant; their employees reported to Mr. Ogurek.

Ogurek and the consultants had the task of monitoring the progress of the work to ensure that it complied with the contract specifications; they did not oversee the methods used to achieve the contractually mandated result. They also bore responsibility for safety violations; only Mr. Ogurek had the ultimate authority to stop work or shut down a site. In any event, either Ogurek or the consultants would first call the violation to the attention of the contractor.

As to the placement of permanent lighting by Johnson Electric, Ogurek, who was straightforward, matter-of-fact - - and credible - - testified that the State's direction of the work was to "make sure it's being installed in the place shown on the plans." With regard to temporary lighting, the State's engineer explained that "the way the spec is written, it just requires the contractor to maintain a certain level of lighting. I believe it's 90%. How he does that is, is pretty much up to him."
Ogurek stated that
he was never made aware of any safety problems with respect to the job site. Schinkel had recalled that, "[w]e had been working on the other side of the expressway and the foreman told us to, to come to this site because this had to be done." Claimant testified that he had done this task five or six times before (he was not clear whether this included other jobs), always with the light pole flat on the ground and without problem.
In sum, the requisite level of control or supervision on the part of the defendant does not obtain here. See also
Comes v New York State Electric and Gas Corporation, 82 NY2d 876, 609 NYS2d 168 (1993).
* * *
In view of the foregoing, claimants have failed to meet their burden that the defendant State of New York is liable for Andrew Schinkel's injury of June 9, 2000, and claim no. 102944 is therefore dismissed. Any motion not previously ruled upon is hereby denied.


May 25, 2004
New York , New York

Judge of the Court of Claims

[1] See General Business Law §481.3.