STEWART v. THE STATE OF NEW YORK, #2005-015-093, Claim No. 109099, Motion No.
Court dismissed claim for personal injury sustained by highway worker who
purportedly stepped into roadside hole while raking millings. Claimant failed
to show defendant had actual or constructive notice of the hole or that the
State supervised or controlled claimant's work.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Setright & Longstreet, LLPBy: Martha L. Berry, Esquire
Honorable Eliot Spitzer, Attorney General
Burke, Scolamiero, Mortati & Hurd,
LLPTerese Burke Wolff, Esquire appearing
June 1, 2006
See also (multicaptioned
Defendant's motion for summary judgment seeking an order dismissing the claim
is granted. By decision and order dated March 9, 2004 the Court granted an
application for late claim relief authorizing service and filing of a claim
asserting a cause of action pursuant to Labor Law §
. The claim filed March 29, 2004 alleges
that claimant was injured on October 18, 2002 while working as a
laborer/operator for Green Island Construction Company (Green Island) on a
repaving project on Interstate 87 in the Town of Plattsburgh. Specifically, the
claim asserts that claimant was raking millings on the road's interior shoulder
adjoining the median when she accidentally stepped into a hole. It is alleged
that as she stepped into the hole her rake became caught on a moving widening
machine causing her body to twist and resulting in injury to her spine, hip and
knee. Despite her assertions to the contrary claimant's accident appears to
have been unwitnessed. The defendant has moved for summary judgment seeking
dismissal of the claim on the grounds that the defendant did not control the
work being performed by claimant at the time of her injury and had no notice of
a defective or dangerous condition at the work site.
The rules applicable to the determination of a motion for summary judgment were
clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68
NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853;
Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the
opposing papers (Winegrad v New York Univ. Med. Center, supra, at
p 853). Once this showing has been made, however, the burden shifts to the
party opposing the motion for summary judgment to produce evidentiary proof in
admissible form sufficient to establish the existence of material issues of fact
which require a trial of the action (Zuckerman v City of New York,
supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden
through the submission of evidentiary proof in admissible form (Rifenburgh v
Wilczek, 294 AD2d 653).
Defendant has supported the motion, inter alia, by copies of the
pleadings; the affidavit of defense counsel; transcripts of the examinations
before trial of the claimant, John Dietrich (project superintendent for Green
Island Construction on the date of claimant's accident) and Steven Stone (roller
operator for Green Island Construction on the date of claimant's accident) and
the affidavits of Henry Stone (claimant's co-worker); Robert D. Munn, Jr., (a
NYS Department of Transportation (DOT) Senior Engineering Technician assigned
to the I-87 resurfacing project) and Daniel E. LaPlante (NYS DOT Principal
Engineering Technician assigned to the I-87 resurfacing project).
Claimant opposed the motion by her own affidavit; the affirmation of her
attorney; unauthenticated business records of DOT (Exhibit A); entries from the
engineer's 2002 daily project diary dated 10/8, 10/9, 10/10, 10/11, 10/14,
10/15, 10/16, 10/17, 10/18, 10/21, 10/22 (Exhibit B); copies of the State
inspector's daily reports dated 10/8, 10/9, 10/10, 10/11 (2), 10/14 (2), 10/15
(2), 10/16, 10/17 (2), 10/18 (Exhibit C); copies of unidentified notebook
entries dated 10/8, 10/9, 10/10, 10/11, 10/15, 10/17, 10/18, 10/21 (Exhibit D);
transcripts of the examinations before trial of Daniel LaPlante (Exhibit E) and
Robert Munn (Exhibit F); copy of a Workers' Compensation Board employer's report
dated 11/1/02 (Exhibit G); a hospital bill for emergency room service rendered
10/19/02 (Exhibit H) and a decision of the Workers' Compensation Board filed
5/28/03 (Exhibit I).
As expressed in both the claim
verified bill of particulars claimant seeks to predicate liability upon the
defendant's alleged failure as owner of the site to provide a safe place to work
in violation of section 200 of the Labor Law. Section 200 is a codification of
the common law duty of an owner (or contractor) to provide workers with a safe
place to work (see Comes v New York State Elec. & Gas Corp.
82 NY2d 876). In Begor v Mid-Hudson Hardwoods
, 301 AD2d 550, lv
, 100 NY2d 501 the Appellate Division, Second Department
Liability will be imposed upon an owner or general contractor under Labor Law
§ 200 only where the plaintiff's injuries were sustained as the result of a
dangerous condition at the work site...and then only if the owner or general
contractor exercised supervision and control over the work performed at the site
or had actual or constructive notice of the unsafe condition causing the
accident (see Giambalvo v Chemical Bank, 260 AD2d 432).
The defendant's submissions have established prima facie that the State neither
controlled nor supervised the work being done by claimant at the time of her
accident nor had any notice of a dangerous or defective condition existing in
the area in which claimant was working.
In response to defendant's prima facie showing of entitlement to judgment as a
matter of law the claimant has failed to demonstrate that the State had actual
or constructive notice of the hole which allegedly caused her injury. Nor did
claimant show that the State supervised or controlled the raking of millings at
the accident site at the time of her injury. Although she offered some proof
that the State inspectors assigned to the project retained general, supervisory
control to ensure that the contractors work was undertaken in a safe manner the
inspectors did not exercise any direct control over Green Island's employees nor
did they direct the manner in which the claimant's work was performed
(see Sainato v City of Albany, 285 AD2d 708; Rice v City of
Cortland, 262 AD2d 770; Moutray v Baron, 244 AD2d 618, lv
denied 91 NY2d 808).
Claimant's examination before trial testimony established that the alleged hole
into which she stepped, while deep enough to accommodate her right leg up to the
knee, was not open and apparent. Claimant did not see the hole despite having
been involved in paving an adjacent emergency U-Turn area (see
defendant's Exhibit D, p 44) days prior to her accident. Moreover, while she
speculated that the hole was in some respect connected to the possible movement
of a No-U-Turn sign in that vicinity and appeared to have been created by a
shovel, she proffered no other proof to substantiate that the purported hole
was manmade or had any connection whatsoever to Green Island's paving project.
Claimant's conjecture that someone involved in the project created the hole or
that it existed for any reasonable period of time prior to her accident and
could have been filled or marked by the defendant is insufficient to create a
material issue of fact. On this record both the origin of the hole and the
length of time it may have existed are matters of speculation.
Furthermore, each of the State's inspectors assigned to the project denied
having witnessed the claimant's accident (see defendant's Exhibits J and
K). In fact, at his examination before trial Daniel LaPlante testified that he
first learned of claimant's accident when he was called to the Attorney
General's Office after the claim was filed (claimant's Exhibit E, p 25). While
LaPlante admitted that he could have inspected the area where claimant was
raking he did not even suggest that he would have controlled the manner in which
she performed her work (see claimant's Exhibit E, p 24).
On the issue of the defendant's supervision or control of claimant's activities
the defendant relies upon claimant's own testimony at her examination before
trial where she was asked the following questions and gave the following answers
(defendant's Exhibit D, p 54):
Q. No one from the Department of Transportation gave you any direction as to
how the millings had to be raked?
Q. At the time that you fell, were there any representatives of the state in
the vicinity of the work being done?
A. Honestly, I can't remember.
Q. Did you have any conversation with any representative of the state that day
prior to the accident occurring?
A. Maybe, "Hi, how are you doing?" I'm not sure if we had saw them that
morning or after. Honestly, I didn't really hold – you know you don't
– if they come up and talk to you then you talk. You just don't –
Q. Did you receive any instruction with respect to the work that was to be
done from any state representative on that day?
A. Myself? No.
Elsewhere in her examination before trial claimant acknowledged that her work
was directed exclusively by either Green Island's project supervisor John
Dietrich or by Green Island's foreman Henry Stone (see defendant's
Exhibit D, pp 35-56). In his examination before trial Mr. Dietrich testified
at page 22 as follows:
Q. Who did Yvonne Stewart report to on a daily basis for this project?
A. Henry Stone.
Q. And who told her what work needed to be done on a daily basis?
A. Henry Stone.
Q. Who told Yvonne what method to use to carry out her work on this
A. Mr. Stone or myself.
Q. Did anyone other than Mr. Stone or yourself tell Yvonne Stewart what work
to do on – on a daily basis or how to do that?
A. No, they did not.
Q. And was it yourself or Mr. Stone that supervised Yvonne work's on the
Steven Stone, one of claimant's co-workers on the subject project testified at
his examination before trial (see defendant's Exhibit G, pp 9-10):
Q. Who was your supervisor?
A. John Dietrich.
Q. Did Green Island have a foreman on the job?
A. Henry Stone.
Q. Did you report to anyone other than those two gentlemen?
Q. Who provided the equipment you needed for your scope of work on that
A. The company; Green Island.
Q. Who provided the material that you needed?
A. The company; Green Island.
Q. Who told you what work to do on a daily basis while you were on that
A. Usually Henry Stone or else Superintendent John Dietrich.
Q. And did anyone other than those two gentlemen tell you what method to use
to carry out your work on that project?
Q. Did anyone other than those two gentlemen supervise your work on that
project while you were there?
Nothing in the record on this motion suggests that defendant directed or
controlled the work in which claimant was engaged at the time of her accident
and, as a result, the defendant cannot be found liable under Labor Law §
Defendant's motion for summary judgment dismissing the claim is granted. The
trial scheduled for June 20, 2006 is cancelled.
June 1, 2006
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated March 17, 2006;
Affidavit of Terese Burke Wolff sworn to March 17, 2006 with exhibits;
Affirmation of Martha L. Berry dated March 29, 2006 with exhibits;
Affidavit of Yvonne Stewart sworn to March 28, 2006;
Reply affidavit of Terese Burke Wolff, sworn to April 18, 2006 with
.In that decision and order the Court denied
late claim relief relative to a proposed Labor Law § 241 (6) cause of
action. Although the defendant's motion addresses the Labor Law § 241 (6)
cause of action the claim filed March 29, 2004 does not contain such a cause of
action and it will not, therefore, be considered by the Court.
.The Court has relied on the claim filed in
the Chief Clerk's Office on March 29, 2004 rather than the earlier proposed
claim submitted by the defendant on the motion as Exhibit A.