New York State Court of Claims

New York State Court of Claims

MORZILLO v. THE STATE OF NEW YORK, #2004-033-082, Claim No. 107242, Motion Nos. M-68528, CM-68700


Synopsis



Case Information

UID:
2004-033-082
Claimant(s):
NICOLO MORZILLO and PATRICIA MORZILLO
Claimant short name:
MORZILLO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court previously amended the caption in this matter by Daily Report dated February 3, 2004 to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107242
Motion number(s):
M-68528
Cross-motion number(s):
CM-68700
Judge:
JAMES J. LACK
Claimant's attorney:
Brody, O'Connor & O'Connor, Esqs.By: Scott A. Brody, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Victor J. D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for injuries by Nicolo Morzillo (hereinafter "claimant") due to the alleged violation of Labor Law §§200 and 241(6) by the State of New York (hereinafter "State"). The accident occurred on January 27, 2002, at Pilgrim State Hospital (hereinafter "Pilgrim"), Brentwood, New York. Claimant was injured as the result of an explosion in an electrical box in which he and another person were working.

On January 27, 2002, claimant was employed by Elemco Testing Co., Inc. (hereinafter "Elemco") as an electrician. On the date in question, Pilgrim suffered a power outage effecting the western portion of Pilgrim's grounds. Claimant's company was contracted to correct the problem that caused the outage. During the course of his work, claimant and another employee of Elemco were injured when an explosion occurred in an electrical box.

Claimant moves and defendant cross-moves for summary judgment pursuant to CPLR 3212[1]. In addition, defendant asks the Court to dismiss the claim as an activity not covered by Labor Law §241(6).

Labor Law §241(6) states
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:


6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Defendant argues that claimant's work does not fall within the definition of construction, demolition or excavation protected by the statute. Naturally, claimant opposes defendant's position and argues that claimant's work was repair work within the meaning of the Industrial Code (12 NYCRR 23-1.4(b)(13)).

In Nagel v D & R Realty Corp., 99 NY2d 98, plaintiff was conducting a two-year safety inspection of defendant's elevators. Plaintiff was standing on top of an elevator when he slipped and fell. The trial court dismissed the complaint finding that plaintiff's activity was nothing more than routine maintenance. On appeal, plaintiff argued that "section 23-1.4 (b) (13) of the Industrial Code defines construction work to include maintenance work, and neither the statute nor the rules distinguish between routine and non-routine maintenance" (supra at 100). In an effort to define "construction work", the Court of Appeals stated:
The Industrial Code definition of "construction work," which includes maintenance, must be construed consistently with this Court's understanding that section 241 (6) covers industrial accidents that occur in the context of construction, demolition and excavation (see Joblon v Solow, 91 NY2d 457, 672 NYS2d 286, 695 NE2d 237 [1998] [finding that electrician's injuries from fall were compensable under Labor Law § 241 (6) because his activities of chopping through wall, chiseling and routing conduit pipe and wire to install a clock constituted construction within the meaning of section 23-1.4 (b) (13)]; Page v State of New York, 56 NY2d 604, 435 NE2d 1095, 450 NYS2d 480 [1982] [finding that plaintiff injured on job while constructing sanitary sewer when unshored trench collapsed had injuries compensable under Labor Law § 241 (6)]). The definition must be construed consistently with the previously mentioned title of the relevant regulation referring to protections in the construction, demolition and excavation context.

(supra at 103). The Court found that plaintiff was not afforded the protection of Labor Law 241(6) in the course of routine maintenance.

In Breeden v Sunset Indus. Park Assoc., 275 AD2d 726, plaintiff was a telephone repairman, and was injured while working on a non-working telephone line. The Court held that the repair of the non-working phone line was routine maintenance and not covered by Labor Law §241(6) because plaintiff was not engaged in construction, demolition or excavation work.

In the case at bar, while claimant was engaged in a repair which had far reaching effects at Pilgrim, he was not engaged in construction, demolition or excavation work. Therefore, Labor Law §241(6) does not apply to the situation and the Court grants defendant's application to dismiss claimant's cause of action pursuant to this statute.

Claimant is left with a cause of action pursuant to Labor Law §200.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

In examining the evidence assembled by the parties, it is obvious that a question of fact exists. Claimant, in his reply papers, affirms that a question of fact exists as to the Labor Law §200 claim (counsel's Affirmation ¶5).

Based on the foregoing, the Court denies claimant's motion and defendant's cross-motion for summary judgment on the Labor Law §200 claim. As previously mentioned, the Court grants defendant's application to dismiss the Labor Law §241(6) claim.


September 30, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on claimant's motion and defendant's cross-motion: Notice of Motion dated May 28, 2004 and filed June 1, 2004; Affirmation in Support of Scott A. Brody, Esq. with annexed Exhibits A-F dated May 28, 2004 and filed June 1, 2004; Notice of Cross-Motion for Summary Judgment dated June 30, 2004 and filed July 1, 2004; Affirmation in Support of Defendant's Cross-Motion and in Opposition to Claimant's Motion for Summary Judgment of Victor J. D'Angelo, Esq. with annexed Exhibits A-F dated June 30, 2004 and filed July 1, 2004; Reply Affirmation in Support of Motion for Summary Judgment and in Opposition to Cross-Motion for Summary Judgment of Scott A. Brody, Esq. with annexed Exhibit G dated July 27, 2004 and filed July 28, 2004.