New York State Court of Claims

New York State Court of Claims

MEYERS v. THE STATE OF NEW YORK, #2005-019-521, Claim Nos. 108853, 109048, Motion Nos. M-69652, CM-69653


Synopsis


Claimant's motion for partial summary judgment on Labor Law 240 (1) is denied; State's cross-motion for summary judgment is granted with respect to Labor Law 200 and 241 (6); and denied with respect to Labor Law 240 (1).

Case Information

UID:
2005-019-521
Claimant(s):
RICHARD J. MEYERS and NANCY L. MEYERS, Individually and as Husband and Wife The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
MEYERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108853, 109048
Motion number(s):
M-69652
Cross-motion number(s):
CM-69653
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MURAD AND MURADBY: Frederick W. Murad, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Coughlin & Gerhart, LLPKeith A. O'Hara, Esq., of counsel
Third-party defendant's attorney:

Signature date:
March 22, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for partial summary judgment on their cause of action premised upon Labor Law 240 (1). The State of New York (hereinafter "State") opposes said motion and cross-moves for summary judgment dismissing all causes of action including Labor Law 200, 240 (1), and Labor Law 241 (6).

The State entered into a contract with Charles Gaetano Construction Company (hereinafter "Gaetano") as general contractor for the renovation of the Human Ecology Building located on the campus of the State University of New York Institute of Technology at Oneonta (hereinafter "Project"). On October 31, 2002, claimant Richard J. Meyers was employed by Gaetano as a laborer on said Project. On the date of this accident, claimant[1] was assigned by Gaetano to assist a mason, Michael Perry, who was performing masonry work inside an air shaft. More specifically, Mr. Perry's job was to lay four-inch block along three of the four inside walls of the air shaft. (Deposition of Michael Perry, p 9, annexed as Exhibit H to the Affidavit of Keith A. O'Hara sworn to January 24, 2005).[2] Claimant's responsibility was to supply brick and mortar to the mason. (Cl.'s 2003 EBT, p 29).[3]


The air shaft itself was eight feet wide by eight feet deep and about thirty or forty feet high. A tubular frame scaffold was set up inside the air shaft. The scaffold was six frames or levels high with each frame approximately 6 feet high and at the time of this accident claimant and Mr. Perry were on the fifth level. The main frame of the scaffold was "completely decked" meaning each level had planking allowing work on each level and on which the block and mortar were kept. (Perry's EBT, p 13; Cl.'s 2003 EBT, p 41).


Additionally, the scaffold was constructed with outriggers and planks on the "work side" or "open side" of the scaffold to allow the mason to work from the outside of the scaffold.[4] The outriggers were described by claimant as similar to a "triangular brace" attached to the outside of the scaffold. (Cl.'s 2003 EBT, p 41; Perry's EBT, p 12). The outriggers are locked to the main frame and planks are laid on the outriggers. (Perry's EBT, p 33). Each plank was estimated to weigh between thirty to forty pounds. (Perry's EBT, p 15). The planks are usually approximately eight and one-half feet long and ten inches wide. (Cl.'s 2003 EBT, p 41). Here, however, Mr. Perry explained that the planks had been modified or cut down to approximately seven feet ten inches to fit within the air shaft. (Perry's EBT, pp 15-16). As a result of this modification, Mr. Perry stated that "[t]he planks were only on the outriggers by an inch and a half. Usually we overhang our planks six inches." (Perry's EBT, pp 32-33).


Both men indicated the main frame of the scaffold was tight against the side and rear walls of the air shaft and the "open side" or "work side" had approximately two feet between the edge and the wall on which they were working. (Cl.'s 2004 EBT, p 40; Perry's EBT, pp 13-14). Further, both men indicated that after the outriggers and planks were put in place on the "open side" or "work side", then only three to four inches of space existed. (Cl.'s 2004 EBT, p 40; Perry's EBT, pp 13-14).

Mr. Perry had completed his work on the fifth level and claimant and Mr. Perry were preparing to raise the foot planks to the next level for the mason to continue working which is the very way in which it was contemplated that the scaffold would be used. (Perry's EBT, p 12). Claimant described his own position just prior to his fall as follows: "I had one leg wrapped around the main frame and I had my knee bent. I was kneeling, I believe, on the boards on the main frame." (Cl.'s 2004 EBT, p 34). Claimant further described the accident as follows:

[Mr. Perry] had worked as high as he could comfortably at the level and we proceeded to move the outriggers and plank up. I put one plank on top of the other on my left shoulder and the mason moved the outrigger up. My back was to him. He went to move the plank and outrigger on the other end. I slid the plank ahead because I lacked a bit to reach the outrigger. I didn't realize at the time but they slid off the other end and when they did, it pulled me down.

***

I was holding a - - two plank about eight and a half feet long. They had a lot of mortar on them from the previous days and they froze to pretty heavy. I was holding about sixteen inches from the end. They had a lot of leverage when they slid. The area where the outriggers are was open right to the basement so they [the planks] pulled me into that shaft.

(Cl.'s 2003 EBT, p 6).


So, as explained by claimant, he fell into the space previously occupied by the outriggers and planks. In other words, when the outriggers and planks were in place, the scaffold was tight up against all four walls inside of the air shaft, including the "open side" or "work side". However, according to claimant, "[w]e were in the process of moving them [outriggers and planks] and it's a two foot space between the main frame and the [working] wall and that's where the outriggers are and the planks are. They pulled me into that two foot space when they fell off." [Cl.'s 2003 EBT, pp 43-44; emphasis added]. It is undisputed that claimant was not wearing a safety line, belt, harness, or lanyard nor was he tied-off in any manner at the time of this accident. Claimant fell approximately thirty feet to the ground suffering, among other things, a dislocated left shoulder.


Claimant served a notice of intention on the attorney general on January 29, 2003. Two claims were filed in connection with this matter. The first claim was filed with the Clerk of the Court on February 2, 2004 and was designated as Claim No. 108853. The State filed a Verified Answer on March 11, 2004. A second claim was filed on March 16, 2004 and designated as Claim No. 109048. Claimant attempted to informally withdraw Claim No. 108853 in a letter to the Clerk of the Court dated April 30, 2004. (Court Exhibit #1). However, no formal stipulation of discontinuance was ever filed pursuant to CPLR 3217. As such, the court will deem the motion and cross-motion as addressing both claims.

DISCUSSION
  1. Labor Law 200 and common-law negligence
Labor Law 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]." (Miller v Wilmorite, Inc., 231 AD2d 843, 843). However, it is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]." (Riccio v Shaker Pine, 262 AD2d 746, 748, lv dismissed 93 NY2d 1042).


Both parties make conclusory statements regarding the State's level of supervisory control, however, neither party directs the court to any deposition testimony supporting their respective positions. Nevertheless, the court has reviewed the depositions of claimant, the mason Michael Perry, as well as John Foster, a construction superintendent with Gaetano. Claimant stated that no one from either the State or Gaetano ever inspected the scaffold after it was erected. (Cl.'s 2004 EBT, p 39). Claimant stated he dealt primarily with John Foster. (Cl.'s 2004 EBT, p 43). In fact, Mr. Foster testified during his deposition that on the date of this accident he personally gave claimant his work assignment to assist the mason in the air shaft. (Exhibit H to the Affidavit of Keith A. O'Hara sworn to January 24, 2005 [hereinafter "Foster's EBT"], p 43).


Upon a review of this record, the court finds no proof that claimant ever received instructions from any State employee regarding how or where to erect the scaffold, his work assignments, and/or how to conduct his work. In short, there is no proof that the State exercised actual supervision and control as necessary to form a foundation for a Labor Law 200 claim. Accordingly, the State's motion for summary judgment with respect to Labor Law 200 cause of action is granted.

  1. Labor Law 240 (1)
It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]." (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491, rearg. denied 87 NY2d 969). Moreover, it is an accepted tenet that "[t]he extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity' (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original])." (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916).


Claimant contends that partial summary judgment on his Labor Law 240 (1) claim is warranted because the scaffold failed to provide proper protection due to the lack of a safety railing on the "open side" or "work side" of the scaffold, as well as the modification of the planks to make them fit within the air shaft on the outriggers. (Affidavit of Gregory M. Murad, Esq., ¶8). Claimant also states that although safety harnesses were available at the job site in the office (Cl.'s 2004 EBT, p 41), he was never instructed to use a safety harness on this job. (Cl.'s 2004 EBT, p 42). Mr. Foster, claimant's supervisor, confirms he never instructed claimant to use a safety harness during this job. Interestingly, claimant and Mr. Perry both stated during their depositions that it would have been difficult, if not unsafe, to do the masonry work while tethered to a safety harness. (Cl.'s 2003 EBT, p 47; Perry's EBT, p 30).


In opposition, the State argues that summary judgment is proper since the scaffold performed its core objective because it did not collapse or otherwise fail. (Affidavit of Keith A. O'Hara, Esq. sworn to January 24, 2005, ¶ 14). The State also raises the argument that claimant's actions were the sole proximate cause of his injuries thereby entitling the State to summary judgment on the Labor Law 240 (1) cause of action.[5]


It is undisputed that claimant was provided with and was working upon a scaffold, which is one of the safety devices enumerated in Labor Law 240 (1). (Musselman v Gaetano Constr. Corp., 277 AD2d 691, 692). However, it is well-settled that the "[m]ere fall from a...safety device that did not slip, collapse or otherwise fail is insufficient to establish that the [safety device] did not provide appropriate protection to the worker [citations omitted]." (Briggs v Halterman, 267 AD2d 753, 755). Moreover, the Third Department has repeatedly stated that:
[w]hen a worker injured in a fall was provided with an elevation-related safety device, the question of whether that device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to preform its function of supporting the worker and his or her materials [citations omitted].

(Id. at 754-755).


Here, it is undisputed that this scaffold did not move or collapse, but rather claimant fell when he was moving the two outrigger planks to the next level and the planks unexpectedly shifted, the weight of which caused him to fall into the space the planks were previously covering. The court finds this case distinguishable from Davis v Pizzagalli Constr. Co., 186 AD2d 960, in which the Third Department found that the fact that a scaffold plank "kicked up" was the equivalent of a collapse. Here, the planks were in the process of being intentionally moved to the next level which, in this court's view, cannot be equated to a collapse warranting summary judgment as a matter of law. As such, the court finds that there is a question of fact for trial whether this scaffold, without safety rails and with modified outrigger planks, failed to provide proper protection within the meaning of Labor Law 240 (1) which was the proximate cause of claimant's injuries. (Weininger v Hagedorn & Co., 91 NY2d 958, 960). Consequently, this court finds that neither party is entitled to summary judgment as a matter of law with respect to Labor Law 240 (1).

  1. Labor Law 241 (6)
Labor Law 241 (6) mandates owners and contractors provide workers reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations. (Ross, 81 NY2d at 501-502, 505). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). This duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site. (Long v Forest-Fehlhaber, 55 NY2d 154, 159). Additionally, a claimant must establish that the violation of the specific safety regulation was a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959).

Initially, the court notes that claimant's failure to cite to any Industrial Code provisions in either of his claims is not a reason in and of itself for dismissal. Claimant cited Industrial Code provisions 23-1.4, 23-1.5, 23-1.15, 23-1.19, and 23-1.22 in his Bill of Particulars served in connection with Claim No. 108853. (Bill of Particulars, ¶ 4 [p]). Claimant then added Industrial Code provisions 23-1.7 (b) (1) (i), (ii), (iii); 23-1.16 (b) and (c); 23-1.19 (b) and (c); and 23-1.22 (c) (2) in his memorandum of law in opposition to the State's cross-motion.[6] The Third Department has specifically stated that although it does "[n]ot condone this dilatory practice", as long as the "belatedly cited regulation" sets forth a specific safety rule that is applicable to the case at hand, then such is sufficient to support a Labor Law 241 (6) cause of action. (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902). As such, this court must review each cited Industrial Code provision identified by claimant to determine whether it cites a specific section and, if so, whether it is applicable to the case at hand.


Industrial Code 23-1.4 and 23-1.5

Industrial Code 23-1.4 and 23-1.5 have both been found to be general provisions which cannot sustain a Labor Law 241 (6) cause of action. (Ross, 81 NY2d 494; Dombrowski v Schwartz, 217 AD2d 914; and Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892). As such, claimant cannot rely on these provisions to support his Labor Law 241 (6) cause of action.


Industrial Code 23-1.7 (b) (1) (i), (ii) and (iii)
Each of these provisions relates to so-called "hazardous opening" and have been found sufficiently specific to support a cause of action under Labor Law 241 (6). (O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60; Williams v G.H. Dev. & Constr Co., 250 AD2d 959). That having been said, however, the elevation difference that caused claimant's fall here is not an "opening" as that term is used in each of these provisions. (DeLong v State St. Assocs., 211 AD2d 891, 893). As such, the court finds Industrial Code provisions 23-1.7 (b) (1) (i), (ii), and (iii) are inapplicable to this case.


Industrial Code 23-1.15

Industrial Code 23-1.15 specifies the manner in which a safety railing is to be constructed. This provision has been found sufficiently specific to support a cause of action under Labor Law 241 (6). (Mazzu v Benderson Dev. Co., 224 AD2d 1009, 1011). However, it has also been stated that if no safety railing is provided at all, then this section is inapplicable. (Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 887; Partridge v Waterloo Cent. School Dist., 12 AD3d 1054, 1056). The court finds this provision inapplicable given the absence of a safety railing.


Industrial Code 23-1.16 (b) and (c)

Industrial Code 23-1.16 (b) and (c) relate to the attachments and instructions for safety belts, harnesses, tail lines and lifelines. These provisions have been found sufficiently specific to support a cause of action under Labor Law 241 (6). (Mills, 262 AD2d at 902). Once again, however, there is case authority for the premise that if the safety device is not provided at all, then this provision is not applicable. (Avendano v Sazerac, Inc., 248 AD2d 340, 341; D'Acunti v New York City School Constr. Auth., 300 AD2d 107, 108; Spenard v Gregware Gen. Contr., 248 AD2d 868, 870-871; Bender v TBT Operating Corp., 186 Misc 2d 394, 402; Luckern, 281 AD2d at 887; Partridge, 12 AD3d at 1056). The court finds this provision inapplicable given the absence of safety belts, harnesses, tail lines and lifelines.


Industrial Code 23-1.19 (b) and (c)

Industrial Code 23-1.19 is entitled "catch platforms" with subpart (b) named "catch platform construction" and subpart (c) called "catch platform enclosures". The term "catch platform" is defined in 23-1.4 (10) as "[a] structure fabricated and mounted on an exterior vertical wall of any building or other structure and designed to catch and hold falling objects or material from upper working levels." (Emphasis added). Even assuming these provisions to be specific, there is no proof that the scaffold, outrigger, and planks were designed to catch falling objects or materials from higher working levels nor was claimant struck by such a falling object or material. The court finds Industrial Code 23-1.19 (b) and (c) inapplicable on these facts.


Industrial Code 23-1.22 (c) (2)

Industrial Code 23-1.22 relates to "structural runways, ramps and platforms", while subpart (c) (2) relates specifically to the need for safety railings on platforms. This provision has been found sufficiently specific to support a cause of action under Labor Law 241 (6). (Bryant v General Elec. Co., 221 AD2d 687, 689). However, the court finds that the scaffold at issue here is not the type of platform envisioned by 23-1.22. (Curley v Gateway Communications, 250 AD2d 888, 892 ["the ramps, runways or platforms contemplated by 12 NYCRR 23-1.22 are those used to transport vehicular and/or pedestrian traffic...."]). The court finds Industrial Code 23-1.22 (c) (2) inapplicable on these facts.


Based on the foregoing, the court finds that the State's cross-motion for summary judgment dismissing claimant's Labor Law 241 (6) cause of action should be granted.

CONCLUSION
Accordingly, for the reasons stated above, it is ORDERED that claimant's motion for partial summary judgment on Labor Law 240 (1), Motion No. M-69652, is DENIED; and the State's cross-motion for summary judgment, Cross-Motion No. CM-69653, is GRANTED with respect to claimant's Labor Law 200 and 241 (6) causes of action; and the State's cross-motion for summary judgment, Cross-Motion No. CM-69653, is DENIED with respect to claimant's Labor Law 240 (1) cause of action in accordance with the foregoing.

March 22, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. Claim No. 108853, filed February 2, 2004.
  2. Answer, filed March 11, 2004.
  3. Claim No. 109048, filed March 16, 2004.
  4. Notice of Motion No. M-69652, dated January 20, 2005, and filed January 24, 2005.
  5. Affidavit of Frederick W. Murad, Esq., in support of motion, sworn to January 20, 2005, with attachments.
  6. Memorandum of Law, in support of motion, dated January 20, 2005.
  7. Notice of Cross-Motion No. CM-69653, dated January 24, 2005, and filed January 31, 2005.
  8. Affidavit of Keith A. O'Hara, Esq., in support of cross-motion, sworn to January 24, 2005, with attached exhibits.
9. Memorandum of Law, in support of cross-motion, dated January 24, 2005.
10. Affidavit of Gregory M. Murad, Esq., in opposition to cross-motion, sworn to February 28, 2005, and filed March 1, 2005, with attached exhibits.
11. Memorandum of Law, in opposition to cross-motion, dated February 28, 2005.
12. Reply Affidavit of Keith A. O'Hara, Esq., in support of cross-motion and in opposition to motion, sworn to March 7, 2005, and filed March 10, 2005.



[1]The term claimant will refer solely to Richard J. Meyers since the claim of Nancy L. Meyers is derivative in nature.
[2]For ease of reference the court will refer to this exhibit as "Perry's EBT".
[3]Claimant was deposed twice, first on July 10, 2003 and then on October 15, 2004. Claimant's deposition transcript from July 10, 2003 is annexed as Exhibit F to the Affidavit of Keith A. O'Hara sworn to January 24, 2005. Claimant's deposition transcript from October 15, 2004 is annexed as Exhibit G to the Affidavit of Keith A. O'Hara sworn to January 24, 2005. For ease of reference, the court will refer to these exhibits as "Cl.'s 2003 EBT" and "Cl.'s 2004 EBT", respectively.
[4]12 NYCRR 23-1.4 (37) defines "outrigger scaffold" as "[a] scaffold the platform of which is built upon outriggers or thrust-outs projecting from the wall or exterior face of a building or other structure with the inboard ends of such supports secured inside the building or other structure."
[5]More specifically, the State asserts that claimant's own actions were the sole proximate cause of his injuries due to his "[f]ailure, together with his co-workers, to secure foot planks that were ordinarily elevated or, at the very least, by not releasing the foot planks when they started to fall. Of course, the more prudent approach would have been to lift the foot planks with the assistance of Mr. Perry, as Mr. Perry acknowledged could have been done." (State's Memorandum of Law, p 6 [the State's Memorandum of Law is not paginated]).
[6]The State also indicates that claimant cited 23-1.7 (b) (2) and 23-1.56 (b). (State's Reply Affidavit). Although the court cannot locate where claimant cited these provisions, 23-1.7 (b) (2) does not apply because it relates to bridge or highway overpass construction and no 23-1.56 (b) provision exists.