LOCKWOOD v. THE STATE OF NEW YORK, #2005-019-526, Claim Nos. 99067, 101827,
Motion No. M-69723
State's motion for summary judgment with respect to Labor Law 241 (6) is
granted in part and denied in part.
In the Matter of the Claim of GILBERT E. LOCKWOOD
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C.BY: Harry J. Forrest, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Burke, Scolamiero, Mortati & Hurd, LLPTerese Burke Wolff, Esq., of counsel
April 1, 2005
See also (multicaptioned
The State of New York (hereinafter "State") moves for summary judgment pursuant
to CPLR 3212 dismissing claimant's sole remaining cause of action based on Labor
Law 241 (6). Claimant opposes the motion.
A brief history of prior motion practice in this matter will help place the
current issues into context. On October 2, 1998, claimant filed a motion
seeking permission to file a late claim pursuant to CCA 10 (6). On that same
date, claimant also filed a claim which was designated as Claim No. 99067.
Claimant's application for late filing was denied by the Hon. Jerome F. Hanifin.
(Lockwood v State of New York, Ct Cl, dated March 22, 1999, Hanifin, J.,
Claim No. None, Motion No. M-58333). Thereafter, upon appeal, the Third
Department reversed Judge Hanifin's Decision, thereby permitting claimant to
file a late claim. (Matter of Lockwood v State of New York, 267 AD2d
832). On January 24, 2000, claimant filed the permitted claim with the Clerk of
the Court which was designated as Claim No. 101827. Claim No. 101827 is
identical to the previously filed Claim No. 99067. Subsequent conferences,
discovery orders and motions have been captioned under Claim No. 101827, but
include the identical matter, Claim No. 99067, as well.
After discovery, claimant filed a Note of Issue with the Clerk of the Court on
January 2, 2004. Then, on April 21, 2004, the State filed its first motion for
summary judgment seeking dismissal of claimant's Labor Law 200 and 240 (1)
causes of action in relation to Claim No. 101827. The State's first motion for
summary judgment did not include claimant's Labor Law 241 (6) cause of action at
that time based upon a self-described defense strategy. This court dismissed
claimant's Labor Law 200 and 240 (1) causes of
(Lockwood v State of New
, Ct Cl, June 15, 2004, Lebous, J., Claim No. 101827, Motion No. M-68350
[UID No. 2004-019-548]).
On January 19, 2005, the court held a conference with counsel with respect to
the remaining Labor Law 241 (6) cause of action at which time it was agreed that
the State would make the instant summary judgment motion prior to the scheduling
of a trial date on the same.
Turning now to the factual allegations underlying this claim, the court will
recite its own prior description of this claim:
[t]his claim arose on October 2, 1996, at approximately 3:30 p.m., at a State
bridge rehabilitation project on Route 17 near the Towns of Colchester and Cooks
Falls, Delaware County, New York (hereinafter "Project"). At the time of this
incident claimant was an employee of Lancaster Development (hereinafter
"Lancaster"), the general contractor for said Project. As part of said Project,
claimant was responsible for chipping away old concrete from a bridge using a
jackhammer. In order to complete this task, claimant and a co-worker, Kevin
Sandell, had personally erected a scaffold standing approximately 30 feet high
and placed it on cobble rocks. (State's Exhibit E, pp 27-28). Also, apparently
two of the scaffold's feet were placed in the creek bed (State's Exhibit E, pp
27-28), despite the installation of concrete slabs on which to place the
scaffold. (State's Exhibit F, p 73). Further, claimant described wedging flat
rocks under the scaffold's feet in order to stabilize the scaffold. (State's
Exhibit E, pp 37-38). Nevertheless, claimant stated during his deposition that
ultimately the movement of the scaffold was nothing out of the ordinary.
(State's Exhibit E, pp 40-41). The scaffold had a safety railing around the
perimeter of the top level. This accident occurred "[w]hen the jackhammer that
[claimant] was using fell from the scaffold where he was working. As claimant
attempted to prevent the jackhammer from falling by grabbing its air hose, he
injured his neck, shoulder, arm and back." (Matter of Lockwood v State of
, 267 AD2d 832, 832; see also
Claimant's Affidavit, ¶
4). It is undisputed that claimant did not fall from the scaffolding or fall
onto the scaffold itself.
(Lockwood v State of New York, Ct Cl, June 15, 2004, Lebous, J., Claim
No. 101827, Motion No. M-68350 [UID No. 2004-019-548]).
The State's sole basis for dismissal of claimant's Labor Law 241 (6) cause of
action is claimant's failure to cite any provision of the Industrial Code until
responding to the instant motion.
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 v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502, 505;
Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349-350). 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).
The court will first address the State's argument that summary judgment is
warranted based upon claimant's failure to identify any Industrial Code
provisions throughout the course of the last six years while this matter has
been pending through discovery, motion practice and appeals. The State argues
that it would be prejudiced by allowing consideration of claimant's late
identification of Industrial Code provisions, because additional discovery would
be required to identify the type of scaffold at issue. It is undisputed that
claimant failed to set forth specific provisions of the Industrial Code in
either of his claims or Bill of Particulars.
Rather, it was only in opposition to the State's current motion when claimant
finally came forward to identify the Industrial Code provisions on which he
intends to rely upon at trial.
The court finds claimant's delay in identifying Industrial Code provisions does
not warrant summary judgment in the State's favor in and of itself. In fact,
the Third Department has 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; Gavigan v Bunkoff Gen.
, 247 AD2d 750, lv denied
92 NY2d 804; Smith v Hovnanian
, 218 AD2d 68 [note of issue already filed, but no showing of the type of
prejudice preventing late amendment]; McGuire v Independent Cement Corp.
255 AD2d 646 [defendant could not assert prejudice or surprise because further
discovery permitted]). Stated another way, the late identification of
Industrial Code provisions should only be a basis for dismissal when the merits
so warrant, namely when the cited provisions are merely general safety standards
regulations or, if specific, do not apply to the facts of the case under
(Narrow v Crane-Hogan Structural
, 202 AD2d 841, 842).
As such, the court finds the proper course is to determine whether each of the
cited provisions belatedly cited by claimant are specific safety rules and, if
so, whether each is applicable to the facts of this case. Claimant has cited
four Industrial Code provisions, namely 23-5.1 (b), 23-5.3 (g) (1), 23-5.3 (h)
(1), and 23-5.6 (a). The court will review each provision in seriatim.
A. Industrial Code 12 NYCRR 23-5.1 (b)
Industrial Code 12 NYCRR 23-5.1 (b) states as follows:
Scaffold footing or anchorage
. The footing or anchorage for every scaffold erected on or supported by the
ground, grade or equivalent surface shall be sound, rigid, capable of
supporting the maximum load intended to be imposed thereon without settling or
deformation and shall be secure against movement in any direction. Unstable
supports, such as barrels, boxes, loose brick or loose stone, shall not be
Claimant cites O'Connor v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d
513, a Second Department case, as authority that 12 NYCRR 23-5.1 (b) is a
specific provision sufficient to maintain a Labor Law 241 (6) cause of action.
However, the court's own research has found that the remaining departments, most
importantly the Third Department which governs here, have found the opposite.
More specifically, in reviewing another subpart of 23-5.1, namely subpart (f),
the Third Department stated "[t]he regulation plaintiffs rely on, 12 NYCRR
23-5.1 (f), does not meet [the specificity] standard as it is a subpart of
the general provisions for all scaffolds and, as such, lacks any degree of
specificity." (Moutray v Baron, 244 AD2d 618, 619, lv denied
91 NY2d 808; emphasis added). The First and Fourth Departments have cited
Moutray in deeming 12 NYCRR 23-5.1 and all its subparts as general
provisions as well. (Schiulaz v Arnell Constr. Corp., 261 AD2d 247, 248
[First Dept.]; Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1140 [Fourth
Dept]). Consequently, in accordance with the foregoing and the Third
Department's determination in Moutray, this court finds that 12 NYCRR
23-5.1 (b) is a general safety standard that does not provide a basis for
liability under Labor Law 241 (6). As such, defendant's motion to dismiss
relative to 12 NYCRR 23-5.1 (b) will be granted.
B. Industrial Code 12 NYCRR 23-5.3 (g) (1)
Industrial Code 12 NYCRR 23-5.3 (g) (1) states as follows:
. (1) Footings for metal scaffolds shall be sound, rigid and capable
of supporting the maximum design loads of such scaffolds without settlement or
deformation. Such footings shall be secure against movement in any direction
and shall have sufficient area to properly transfer the vertical post or end
frame loads of the scaffolds to the ground, grade or equivalent surface without
causing any unsafe condition.
Claimant merely quotes the text of this provision, but does not cite any
authority discussing whether this provision is a specific or general safety
standard. (Claimant's Memorandum of Law, p 4). The court's own research has
uncovered two cases in which 12 NYCRR 23-5.3 is discussed, although both cases
address 23-5.3 (f), not subpart 23-5.3 (g) (1) as cited here. (Sopha v
., 261 AD2d 911, 912 [23-5.3 (f) is found specific];
Bender v TBT Operating Corp
., 186 Misc 2d 394, 403 [23-5.3 (f) is found
specific]). At issue here, however, is 12 NYCRR 23-5.3 (g) (1). This court is
struck by the nearly identical language in 12 NYCRR 23-5.3 (g) (1) as compared
to 12 NYCRR 23-5.1 (b) discussed above and found by the Third Department in
to be a general provision. By way of example, the content of the
specific subparts are strikingly similar. Both 23-5.1 (b) and 23-5.3 (g) (1)
state that footings "[s]hall be sound, rigid and capable of supporting the
maximum [design] load[s]..." and "[s]hall be secure against movement in any
In this court's view, in consideration of the Third Department's determination
in Moutray and the strikingly similar language between the two subparts,
this court finds that 12 NYCRR 23-5.3 (g) (1) is a general safety standard that
does not provide a basis for liability under Labor Law 241 (6). As such, the
State's motion for summary judgment dismissing claimant's Labor Law 241 (6)
cause of action based on 12 NYCRR 23-5.3 (g) (1) will be granted.
C. Industrial Code 12 NYCRR 23-5.3 (h) (1) and 12 NYCRR 23-5.6 (a)
The two remaining provisions cited by claimant are Industrial Code 12 NYCRR
23-5.3 (h) (1) and Industrial Code 12 NYCRR 23-5.6 (a).
Industrial Code 12 NYCRR 23-5.3 (h) (1) states that "[e]very metal scaffold
shall be securely tied into the building or other structure at intervals not to
exceed 30 feet horizontally and 26 feet vertically."
Industrial Code 12 NYCRR 23-5.6 (a) states:
. The foot end of any pole used in a pole scaffold shall rest on firm footing
and shall be secured against lateral movement by nailing, the use of cleats or
by any other effective means. Where wood poles are spliced, the ends shall be
square and the upper sections shall rest squarely on the lower sections. Wood
splicing pieces shall be provided on at least two adjacent sides and shall be
not less than three feet in length. They shall overlap the abutting ends by an
equal distance and shall have a combined cross-sectional area of not less than
50 percent of the cross-sectional area of the pole.
Neither party cites any authority discussing whether these provisions are
specific or general safety standards. Nor has the court's own research
uncovered any such authority. The court will presume for purposes of this
discussion that both these provisions are sufficiently specific to state a Labor
Law 241 (6) cause of action.
With respect to the applicability of these respective provisions to this case,
the State argues that it cannot tell if these provisions are applicable because
it does not know whether a metal or pole scaffold was involved in this accident.
More specifically, the State argues "[w]e can not even tell if the newly alleged
violations are relevant and applicable because more fact gathering and review is
absolutely necessary. For example, we don't even know how the scaffold at issue
would be classified under the alleged Industrial Code violations which clearly
make distinctions between different scaffold models and types." (State's Reply
Memorandum of Law, p 5). Claimant does not address this issue.
It is the State's burden as the moving party on this motion, to prove that
these Industrial Code provisions are inapplicable to the facts of this case.
(Sainato v City of Albany
, 285 AD2d 708, 710; Bockmier v Niagara
, 265 AD2d 897). Although the court finds it somewhat perplexing
that after six years of litigation there is no discovery identifying the type of
scaffold at issue here, suffice it to say, from this record the court cannot
ascertain with any certainty whether the scaffold at issue is a metal scaffold
(12 NYCRR 23-5.3 [h] ) or a pole scaffold (12 NYCRR 23-5.6
Consequently, the State's motion for
summary judgment relative to Labor Law 241 (6) based upon 12 NYCRR 23-5.3 (h)
(1) and 12 NYCRR 23-5.6 (a) is denied. The court will, however, reopen
discovery on the limited issues raised by 12 NYCRR 23-5.3 (h) (1) and 12 NYCRR
23-5.6 (a) including the identification of the type of scaffold on which
claimant was working at the time of this accident. The court will contact
counsel for the purpose of arranging a conference to discuss a schedule for the
completion of outstanding discovery.
Accordingly, for the reasons stated above, it is ORDERED that the State's
Motion to Dismiss, Motion No. M-69723, is granted in part and denied in part in
accordance with the foregoing.
April 1, 2005
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
The court has considered the following papers in connection with this
Claim No. 99067, filed October 2, 1998.
Memorandum-Decision and Order, Hanifin, J., Claim No. None, Motion No. M-58333,
filed March 31, 1999.
Memorandum and Order, Supreme Court, Appellate Division Third Department,
entered December 23, 1999.
Claim No. 101827, filed January 24, 2000.
Decision and Order, Lebous, J., Claim No. 101827, Motion No. M-68350, filed
June 25, 2004.
Notice of Motion No. M-69723, dated February 9, 2005, and filed February 10,
Affidavit of Terese Burke Wolff, Esq., in support of motion, sworn to February
9, 2005, with attached exhibits.
Memorandum of Law in support of motion, undated.
Affirmation of Harry J. Forrest, Esq., in opposition to motion, dated February
25, 2005, and filed February 28, 2005.
Claimant's Memorandum of Law in Opposition to "Respondent's" Motion to Dismiss,
dated February 25, 2005.
Reply Affidavit in Support of Motion for Summary Judgment, of Terese Burke
Wolff, Esq., sworn to March 22, 2005, and filed March 24, 2005, with attached
Reply Memorandum of Law, in support of motion, undated.
Claimant's opposing papers were filed after
the return date of February 23, 2005 due to an apparent oversight in claimant's
office. Over the objection of defense counsel, the court advised both parties,
in writing, that it found no prejudice in accepting claimant's late submission
and adjourned the motion to March 23, 2005 to allow the State additional time to
submit reply papers. (CPLR 2214 [c]; 22 NYCRR 206.9 [b]).
Although the motion was addressed to Claim No.
101827, for the same reasons set forth in said Decision and Order, claimant's
Labor Law 200 and 240 (1) are dismissed as well in relation to Claim No.
Selected unreported decisions from the Court
of Claims are available via the Internet at
Citations within the quoted material are to
the exhibits annexed to defendant's prior motion for summary judgment.
There is no reference to any Industrial Code
provision in either Claim No. 99067 or Claim No. 101827. The only Bill of
Particulars served was in connection with Claim No. 101827.
The court finds the cases cited by the State
distinguishable. For instance, in Reilly v Newireen Assoc.
, 303 AD2d
214, lv denied
100 NY2d 508, the plaintiff's request to amend her bill of
particulars was denied based upon plaintiff's failure to comply with the court's
order to identify Industrial Code provisions within a specific time period.
12 NYCRR 23-5.3 (g) (1) contains the word
"design" while 12 NYCRR 23-5.1 (b) does not.
That having been said, claimant refers to the
scaffold in his deposition as "round steel scaffolding" and "steel pipe."
(State's Exhibit E, pp 28 & 32). Claimant's co-worker refers to the
scaffold as metal railing with pins. (State's Exhibit G, pp 22-23).