New York State Court of Claims

New York State Court of Claims
IRIZARRY v. THE STATE OF NEW YORK, #2005-033-115, Claim No. 107614, Motion No. M-69289

Case Information
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

James J. Lack
Claimant’s attorney:
The Feld Law Firm, P.C.By: David Lewis Feld, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Victor J. D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 28, 2005

Official citation:

Appellate results:
MODIFIED 35 AD3D 665 2D DEPT 2006
See also (multicaptioned case)


This is a claim for injuries by Carlos Irizarry (hereinafter “claimant”) due to the alleged violation of Labor Law §§241(6) and 200 by the State of New York (hereinafter “State”). The accident occurred on January 27, 2002, at Pilgrim State Hospital (hereinafter “Pilgrim”), Brentwood, New York. Claimant was injured as the result of an explosion in an electrical box in which he and another person were working. The claim of Renee Irizarry is derivative in nature.
On January 27, 2002, claimant was employed by Elemco Testing Co., Inc. (hereinafter “Elemco”) as an electrician. On the date in question, Pilgrim suffered a power outage. The outage effected the western portion of Pilgrim’s grounds. Claimant’s company was contracted to repair the situation which caused the power outage. During the course of his work, claimant and another employee of Elemco were injured when an explosion occurred in an electrical box.

Defendant moves for summary judgment pursuant to CPLR 3212. In the alternative, defendant asks the Court to dismiss the claim as an activity not covered by Labor Law §241(6).

Labor Law §241(6) states
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Defendant argues that claimant’s work does not fall within the definition of construction, demolition or excavation protected by the statute. In support of its position, defendant relies on this Court’s decision in Morzillo v State of New York (Claim No. 107242; M-68528, CM-68700). As previously stated, Morzillo was the worker with claimant on the date of the accident. In that action both parties moved for summary judgment. This Court was presented with almost the identical exhibits in support of each party’s position. The Court found that the work being performed by Morzillo and claimant was not covered by Labor Law §241(6).
To avoid a similar outcome, claimant includes an affidavit of an expert. The expert’s opinion is aimed at stating that this action falls squarely under Labor Law §241(6). In ¶¶4 and 5 of his affidavit, the expert (who states that he is an expert in the field of construction safety), gives his legal opinion that defendant violated Labor Law §§241(6) and 200. Similarly, claimant’s affidavit and the expert’s affidavit state that this job was a major construction project. The project involved the demolition of faulty work and the construction of new electrical work.
In Nagel v D & R Realty Corp., 99 NY2d 98, plaintiff was conducting a two-year safety inspection of defendant’s elevators. Plaintiff was standing on top of an elevator when he slipped and fell. The trial court dismissed the complaint finding that plaintiff’s activity was nothing more than routine maintenance. On appeal, plaintiff argued that “section 23-1.4 (b) (13) of the Industrial Code defines construction work to include maintenance work, and neither the statute nor the rules distinguish between routine and non-routine maintenance” (supra at 100). In an effort to define “construction work”, the Court of Appeals stated:
The Industrial Code definition of "construction work," which includes maintenance, must be construed consistently with this Court's understanding that section 241 (6) covers industrial accidents that occur in the context of construction, demolition and excavation (see Joblon v Solow, 91 NY2d 457, 672 NYS2d 286, 695 NE2d 237 [1998] [finding that electrician's injuries from fall were compensable under Labor Law § 241 (6) because his activities of chopping through wall, chiseling and routing conduit pipe and wire to install a clock constituted construction within the meaning of section 23-1.4 (b) (13)]; Page v State of New York, 56 NY2d 604, 435 NE2d 1095, 450 NYS2d 480 [1982] [finding that plaintiff injured on job while constructing sanitary sewer when unshored trench collapsed had injuries compensable under Labor Law § 241 (6)]). The definition must be construed consistently with the previously mentioned title of the relevant regulation referring to protections in the construction, demolition and excavation context.

(supra at 103). The Court found that plaintiff was not afforded the protection of Labor Law 241(6) in the course of routine maintenance.
In Breeden v Sunset Indus. Park Assocs., 275 AD2d 726, plaintiff was a telephone repairman and was injured while working on a non-working telephone line. The Court held that the repair of the non-working phone line was routine maintenance and not covered by Labor Law §241(6) because plaintiff was not engaged in construction, demolition or excavation work.
While the Court appreciates claimant’s efforts in attempting to use as many of the Labor Law §241(6) categories as possible, the efforts are to no avail. In the case at bar, while claimant was engaged in a repair which had far-reaching effects at Pilgrim, he was not engaged in construction, demolition or excavation work. Claimant’s own Exhibits (C and D) indicate that Elemco was engaged to do repair work. Therefore, Labor Law §241(6) does not apply to the situation and the Court grants defendant’s application to dismiss claimant’s cause of action.
Claimant is left with a cause of action pursuant to Labor Law §200.
Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
As previously mentioned, the evidence assembled by the parties is almost identical to that which was provided to the Court in Morzillo v State of New York. After examining defendant’s papers in support of its motion for summary judgment, the Court finds that defendant has made a prima facie showing of its entitlement to summary judgment. The witness depositions indicate that this power failure occurred and Elemco was retained to make repairs (DiCecco EBT, defendant’s Exhibit D). Elemco’s employee, Richard Hamablet (EBT transcript, defendant’s Exhibit G), testified that Elemco’s employees were doing the work while defendant’s employees were present to open doors (defendant’s Exhibit G, pp. 41 - 42) and to let the contractors do their own thing (defendant’s Exhibit G, pp. 28 - 29).
The burden of having to show a fact in question was successfully shifted to claimant. As part of claimant’s case, he offered Exhibit C, which includes test sheets, a report from Tony Bifulco (an Elemco technician), injury reports, photos, invoices and the contract. The report from Tony Bifulco indicates that defendant’s employee was with claimant and Morzillo to give them access to the building (Exhibit C, p. 14) and that when the cover was removed from the service cables, claimant “immediately entered the cubicle reaching toward the arrestors” (Exhibit C, p. 14). The injury reports state that the claimant and Morzillo were the cause of the accident because of their failure to verify if energy was present and this failure did not follow company policy or industry standards (Exhibit C, pp. 16 and 17).
There is no question that defendant exercised no supervisory control over Elemco or its workers. Defendant’s employees were present to give passage through locked doors. While claimant’s accident is tragic, the Court finds no question of fact as to how the accident occurred. Claimant’s own failure to follow industry standards in verifying that the arrestors had been de-energized was the proximate cause of this accident and claimant’s injuries.
Based on the foregoing, the Court grants defendant’s motion and dismisses the claim. The Clerk of the Court is directed to close the file.

March 28, 2005
Hauppauge, New York

Judge of the Court of Claims

[1]The other worker was Nicolo Morzillo who also filed a claim against the State of New York (Claim No. 107242).
[2]The following papers have been read and considered on defendant’s motion: Notice of Motion for Summary Judgment dated October 25, 2004 and filed October 28, 2004; Affirmation in Support of Defendant’s Motion for Summary Judgment of Victor J. D’Angelo, Esq. with annexed Exhibits A–H dated October 25, 2004 and filed October 28, 2004; Affirmation in Opposition of David Lewis Feld, Esq. with annexed Exhibits A-I dated January 10, 2005 and filed January 14, 2005; Affirmation in Reply of Victor J. D’Angelo, Esq. with annexed Exhibits A-B dated January 24, 2005 and filed January 26, 2005.