MEYERS v. THE STATE OF NEW YORK, #2005-019-521, Claim Nos. 108853, 109048,
Motion Nos. M-69652, CM-69653
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).
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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
MURAD AND MURADBY: Frederick W. Murad, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Coughlin & Gerhart, LLPKeith A. O'Hara, Esq., of counsel
March 22, 2005
See also (multicaptioned
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,
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,
Claimant's responsibility was to
supply brick and mortar to the mason. (Cl.'s 2003 EBT, p
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.
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
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.
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.
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.
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
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.
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
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
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
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.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The court has considered the following papers in connection with these
Claim No. 108853, filed February 2, 2004.
Answer, filed March 11, 2004.
Claim No. 109048, filed March 16, 2004.
Notice of Motion No. M-69652, dated January 20, 2005, and filed January 24,
Affidavit of Frederick W. Murad, Esq., in support of motion, sworn to January
20, 2005, with attachments.
Memorandum of Law, in support of motion, dated January 20, 2005.
Notice of Cross-Motion No. CM-69653, dated January 24, 2005, and filed January
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,
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.
The term claimant will refer solely to Richard
J. Meyers since the claim of Nancy L. Meyers is derivative in nature.
For ease of reference the court will refer to
this exhibit as "Perry's EBT".
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.
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
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]).
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.