New York State Court of Claims

New York State Court of Claims

BRUTON v. THE STATE OF NEW YORK, #2004-034-558, Claim No. 103345, Motion No. M-67476


Defendant's motion for summary judgment is granted, in part. Claimant's causes of action based on Labor Law § § 200, 240 (1) and 241 (6) [violation of 12 NYCRR 23-3.3 (b) (5)] are dismissed. The cause of action based upon 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (b) will remain. The emergency repair of a security wall at Wende Correctional Facility falls squarely within definition of 23-2.1. (b).

Case Information

JOHN M. BRUTON The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is an action for personal injuries wherein Claimant alleges that Defendant failed to provide him with a safe place to work in violation of sections 200, 240 (1) and 241(6) of the Labor Law, and otherwise was negligent in its maintenance of the premises. Defendant has brought a motion for summary judgment pursuant to CPLR 3212 seeking to dismiss the claim in its entirety. The following papers were read and considered by the Court:
1. Notice of motion, dated October 1, 2003;

2. Affidavit of Wendy E. Morcio, sworn to October 1, 2003, in support of the motion;
3. Affidavit of Earl Spring, sworn to August 29, 2003, in support of the motion;

4. Defendant's Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated October 1, 2003, with annexed exhibits;

5. Attorney Affirmation of Harry J. Forrest, dated November 19, 2003, in opposition to motion, with annexed exhibits;

6. Claimant's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated November 19, 2003;

7. Reply Affidavit in Support of Defendant's Motion for Summary Judgment of Wendy E. Morcio, sworn to December 31, 2003;

8. Attorney Affirmation in Further Opposition of Harry J. Forrest, dated January 14, 2004.

On consideration, the Court will now grant summary judgment dismissing the causes of action based upon Labor Law § § 200 and 240 (1), as well as common law negligence. The Court will also grant dismissal of the claim under Labor Law § 241 (6) to the extent premised upon an alleged violation of 12 NYCRR 23-3.3 (b) (5), but deny Defendant's motion to the extent Claimant has asserted 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (b) as bases for liability.

Claimant allegedly sustained an ankle injury on November 8, 1999, while working as a carpenter/laborer for Massa Construction Company (Massa) at Wende Correctional Facility (Wende). Massa had entered into an emergency contract with the State to repair a masonry security wall at Wende by removing stone coping and loose brick masonry veneer, and then installing new brick masonry and metal coping (see Emergency Project No. E7613-C, Exhibit C, Defendant's Memorandum of Law). On the day of the accident Claimant was instructed by another Massa employee, Kevin Elledge, to mix mortar for the masons working on the scaffold located next to the security wall. The accident purportedly occurred when Claimant tripped on debris at the base of a ladder he was descending after delivering mortar to the masons who were chipping loose brick and stone from the wall. Claimant described the debris as consisting of pebbles, pieces of concrete and brick.

The question presented on Defendant's motion for summary judgment is whether the Defendant, as owner of the premises, may be held liable for the injuries allegedly sustained by Claimant under principles of common law negligence and several provisions within the Labor Law. Those causes of action will be discussed separately.
I. Labor Law § 200/Common Law Principles of Negligence
Labor Law § 200 is a codification of the common law duty of an owner or contractor to use reasonable care to provide a worker with a safe place to work (see Allen v Cloutier Constr. Corp., 44 NY2d 290, 299 [1978]). Liability will not attach, however, if the owner or contractor did not exercise supervisory control over the injury-producing activity (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Lombardi v Stout, 80 NY2d 290, 295 [1992]). General supervisory authority to oversee the progress of the work or to inspect the work product is insufficient to impose liability under Labor Law § 200 or common law principles of negligence (Kvandal v Westminster Presbyterian Socy. of Buffalo, 254 AD2d 818 [1998]).

Earl Spring, the former Senior Superintendent of Construction for the Office of General Services for the State of New York (OGS), established that he did not direct, control or supervise the work being performed, and that on his periodic visits he was only responsible for ensuring that the work was progressing according to the contract specifications (Spring Affidavit, Defendant's Notice of Motion). Walter Samulski, another Senior Superintendent for OGS, and the Director's representative for all on-going projects at Wende during this time period, would also periodically check on the progress of the work (Samulski Transcript, Exhibit A, Harry J. Forrest's Affirmation, pp. 9-14, 17-18). Claimant received his daily instructions from the foreman, Kevin Elledge, another carpenter/laborer employed by Massa (Bruton Transcript, Exhibit B, Affirmation of Harry J. Forrest, pp. 22, 30). With respect to the State's representatives, Claimant testified that he saw Mr. Smolinski on site "very rarely" and that Mr. Spring only inspected the work to be sure that it was being done in a timely manner and to ensure its quality (Bruton Transcript, Exhibit B, pp. 93-95). Since the unrebutted evidence has established that the State did not exercise supervisory control over the work being performed, and Claimant's injuries did not result from any defect in the premises, Claimant is precluded from recovering under Labor Law § 200 or common law principles of negligence (Comes, 82 NY2d at 877; Lombardi, 80 NY2d at 295).

II. Labor Law § 240

Section 240 (1) of the Labor Law imposes on owners and contractors a nondelegable duty to provide scaffolding, hoists and other safety devices to insure the safety of workers exposed to elevation-related risks (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). The extraordinary protections provided by section 240 (1) are limited to those special hazards related to the effects of gravity, and do not encompass any or all perils which in some tangential way are connected to the effects of gravity (Ross, id. at 500-501). Where the risk to the worker is the result of ordinary dangers at a construction site, unrelated to an elevation-related risk, no liability under section 240 (1) would exist (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916 [1999]). Thus, for example, no section 240 (1) liability was imposed when a worker tripped over a concealed object on a floor while stepping off a ladder (Nieves, id. at 916), or when a worker tripped on debris (a broken cinder block) on the ground while stepping down from a scaffold (Fulton v Northland Assocs., Inc., 248 AD2d 1020 [1998]).

Claimant testified that he was injured as he stepped off a ladder onto the ground and his left ankle twisted on debris in the area of the ladder. As alleged, the incident would not have resulted from an elevated-related risk covered by section 240 (1), but rather from an ordinary and usual danger at a construction site. Recovery under section 240 (1) must therefore be denied.

III. Labor Law § 241 (6)

Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition (see Ross, 81 NY2d at 501-502). In order to recover a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed (see Ross, 81 NY2d at 501-502; Long v Forest-Fehlhaber, 55 NY2d 154 [1982]). However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law (see Ross, 81 NY2d at 502-504). The violation of a specific standard of conduct, once proven, does not establish negligence as a matter of law, but rather is some evidence of negligence to be considered with other relevant proof (see Long, 55 NY2d at 160).

Here, Claimant has alleged that his injuries were caused by the State's violation of 12 NYCRR 23-1.7 (e) (2), 23-2.1 (b) and 23-3.3 (b). In urging dismissal the State contends that those regulations are either too general to form the predicate for a section 241 (6) violation, or are simply inapplicable to the facts of this case. Those provisions of the Industrial Code will be separately reviewed, as follows:

12 NYCRR 23-1.7 (e) (2)

12 NYCRR 23-1.7 (e) (2) (Protection from General Hazards) provides:

(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.
Regulation 23-1.7 (e) (2) has been held to set forth a sufficiently specific standard of conduct to support a section 241 (6) cause of action (Kvandal, 254 AD2d 818, supra). Defendant alleges, however, that the regulation is inapplicable because the material upon which Claimant tripped was an integral part of the work being performed. The Court accepts that liability would not attach if Claimant tripped over an object or material which was an integral part of the work being performed (see Castillo v Starrett City, Inc., 4 AD3d 320 [2004] [small piece of insulation]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2003] [demolition debris]; Schroth v New York State Thruway Auth., 300 AD2d 1044 [2002] [sandblasting hose]; Harvey v Morse Diesel Intl., 299 AD2d 451[2002], lv denied 99 NY2d 508 [2003] [6-inch piece of electrical cable]; Sharrow v Dick Corp., 233 AD2d 858 [1996], lv denied 89 NY2d 810 [1997] [Genie hoist]). Here, Claimant tripped on a pebble, brick or piece of cement. On the submissions the Court cannot determine whether those objects constituted an accumulation of debris improperly remaining in a work area, or were an integral part of the work being performed by his coworkers at that time. That question of fact will need to be determined at trial.

Defendant also has urged that 23-1.7 (e) (2) is inapplicable because Claimant tripped in "an open area construction site," and because the debris was open and obvious. That a condition is open and obvious is relevant to the assessment of a claimant's comparative negligence, and may relieve an owner from a duty to warn, but does not negate the duty of an owner to maintain its property in a reasonably safe condition (see Waszak v State of New York, 275 AD2d 916 [2000]; Steenwerth v United Ref. Co. of Pa., 273 AD2d 878 [2000]). Historically, such a defense has been raised in apportioning fault in Labor Law § 200 causes of action. The Court, however, will consider Defendant's contentions at trial in weighing any culpable conduct on Claimant's part under his section 241 (6) cause of action (see Long, 55 NY2d at 161; Ross, 81 NY2d at 502 n 4; Rizzuto v Wenger Contr. Co., 91 NY2d 343, 350 [1998]).

The Court accepts Defendant's assertion that regulation 23-1.7 (e) (2) does not apply to accidents occurring in open construction areas. That regulation only applies to specified work areas, such as floors, roofs, or platforms, and defined walkways, passageways or paths, and not to common areas or open yards in front of or between buildings (Bauer v Niagara Mohawk Power Corp., 249 AD2d 948, 949 [1998]); McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 878 [1995]). Here, Claimant was injured in a 10 foot area between a building and other structures where he positioned the ladder to deliver mortar which had been mixed in another location (Bruton Transcript, Exhibit B, p. 60). Whether that 10 foot area constituted a work area within the purview of the regulation, or an open construction or common area, is a question of fact which also must await determination at trial. Defendant's motion for summary judgment to dismiss the section 241 (6) claim to the extent based on an alleged violation of 12 NYCRR 23-1.7 (e) (2) is therefore denied.

B. 12 NYCRR 23-2.1 (b)

Subpart 23-2 of the Industrial Code governs construction operations. The section relied on by Claimant provides:

23-2.1 Maintenance and housekeeping.
(b) Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.
Defendant argues that this regulation lacks the specificity needed to qualify as a predicate to a § 241 (6) cause of action. While there is disagreement among the departments as to whether the regulation is sufficiently specific, the Fourth Department has repeatedly held that section 23-2.1 (b) is specific enough to form the bases of a section 241 (6) cause of action (Donnelly v City of Niagara Falls, 5 AD3d 1103 [2004]; Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017 [2001]; Kvandal, 254 AD2d 818, supra).

To the extent Defendant contends that the regulation would only apply to demolition work, nothing within section 23-2.1 (b) would restrict its application to demolition work. In fact, subpart 23-2 is entitled "construction operations." Construction work is defined as work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation . . . the structural installation of . . . masonry and other building materials in any form or for any purpose" (12 NYCRR 23-1.4 [b] [13]). The emergency repair of the security wall at Wende fits squarely within this definition of construction work, and thus within the ambit of regulation 23-2.1 (b) and Labor Law § 241 (6) (see Lozo v Crown Zellerbach Corp., 142 AD2d 949 [1988]; Shapiro v ACG Equity Assocs., 233 AD2d 857 [1996]).

C. 12 NYCRR 23-3.3 (b) (5)

Regulation 23-3.3 covers demolition by hand. The subsection relied on by Claimant provides:

(b) Demolition of walls and partitions.
(5) In the demolition by hand of exterior walls, all persons performing such work shall be provided with safe footing in the form of sound flooring or scaffolds constructed and installed in compliance with this Part (rule).
Initially, Defendant has objected to the use of the regulation as a predicate for a section 241 (6) cause of action because the subsection relied upon was not specified in Claimant's pleadings. In paragraph 21 of the Claim and paragraph 11 of the Bill of Particulars, Claimant alleged that Defendant violated regulation 23-3.3 (b), although without citing a specific subsection. While the better practice would have been to identify the specific section and subsection relied on, the failure to do so does not require dismissal of the cause of action (see White v Farash Corp., 224 AD2d 978 [1996]). The Fourth Department has held that regulation 23-3.3 is sufficiently specific to form the predicate for a section 241 (6) cause of action (Terry v Mutual Life Ins. Co. of N.Y., 265 AD2d 929 [1999]).

Defendant also has urged that section 23-3.3 (b) (5) is not applicable because by its very terms that regulation is restricted to demolition by hand of "exterior walls," and the work activities in question involved an "internal" wall. In support of its argument Defendant has noted the project title as listed in the contract bid request: "Provide Repair to Internal Masonry Security Wall, E and F Recreation Yard."(emphasis added) (see Page 1 of 3, Exhibit C to Defendant's Memorandum of Law). The Court rejects that basis for dismissal as well. The security wall separates two recreation yards at Wende, and the word "internal" as used in the project title merely referred to the fact that the wall is located within the prison compound. While neither party has cited any case law to elucidate the meaning of "exterior walls" as used in the regulation, the plain meaning of the term "exterior" i.e., an "outside" surface, supports a conclusion that the free standing security wall under repair falls within the purview of section 23-3.3 (b) (5). The work was clearly being performed on the exterior of the structure, and any reference to an "internal" wall in the project title is simply a part of the lexicon of the prison system.

The Court, however, does accept Defendant's argument that regulation 23-3.3 (b) (5) is restricted to demolition work, and that the work being performed on the security wall did not amount to demolition work within the purview of the regulation. According to the Industrial Code, demolition work is defined as work "incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removal or dismantling of machinery or other equipment" (12NYCRR § 23-1.4 [b] [16]). That definition anticipates more than just the "painting, plastering or removal and installation of (for example) sheetrock;" rather, it envisions "some structural change of the building, in whole or in part, i.e., some interference with, alteration or change in the structural integrity of the building, sufficient to constitute a dismantling or razing of the building, in whole or in part" (Zuniga v Stam Realty, 169 Misc 2d 1004, 1010 [1996], affd 245 AD2d 561 [1997], lv denied 91 NY2d 813 [1998]). No "structural change" in the free-standing security wall at Wende was contemplated by the emergency project. The contract instead called for the "repair" of damaged areas and the supplying of a new metal coping necessitated by the fact that "portions of the masonry veneer ha[d] become loose and ha[d] pulled away from the concrete core." (see Emergency Project, Exhibit C, page entitled "Scope of Work"). Because the project work did not call for the dismantling or razing of a building or structure, in whole or in part, the work being performed does not fall within the purview of demolition work and accordingly, regulation 23-3.3 (b) (5) is inapplicable.

Based upon the foregoing, Defendant's motion for summary judgment is granted in part and denied in part, and it is hereby

ORDERED that Defendant's motion for summary judgment dismissing the causes of action based on Labor Law § 200 and common law negligence is granted, and those causes of action dismissed; and it is further

ORDERED, that Defendant's motion for summary judgment dismissing the cause of action are based on Labor Law § 240 (1) is granted, and the cause of action is dismissed; and it is further

ORDERED, that Defendant's motion for summary judgment dismissing the cause of action based on Labor Law § 241 (6) is granted to the extent based upon an alleged violation of 12 NYCRR 23-3.3 (b) (5), but denied to the extent Claimant has asserted violations of 12 NYCRR 23-1.7 (e) (2) and 23-2.1 (b).


August 25, 2004
Buffalo, New York

Judge of the Court of Claims