New York State Court of Claims

New York State Court of Claims
GASQUES v. THE STATE OF NEW YORK, # 2006-027-525, Claim No. 108518, Motion No. M-70106


Defendant's motion for summary judgment, labor law case.

Case information

UID: 2006-027-525
Claimant short name: GASQUES
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 108518
Motion number(s): M-70106
Cross-motion number(s):
Claimant's attorney: Herbert William Fischman, P.C.
By: Paul Biedka, Esq.
Defendant's attorney: Cartafalsa, Slattery & Metaxas
By: Regina M. Coady, Esq.
Third-party defendant's attorney:
Signature date: September 6, 2006
City: New York
Official citation:
Appellate results: Affirmed by Court of Appeals, 2010 WL 4116605
See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation in Support with annexed Exhibits A-J, Defendant's Memorandum of Law, Claimants' Affirmation in Opposition with annexed Exhibits A-I and Defendant's Reply Affirmation.

Defendant, the State of New York, has brought this motion, pursuant to Civil Practice Law and Rules (CPLR) R 3212 and R 3211(a)(7) seeking an Order granting summary judgment in its favor and dismissing the claim. Claimants, Wanderlei Gasques and Elma Gasques, have opposed this motion.

On October 8, 2003, claimant, Wanderlei Gasques, was a bridge painter and sand blaster employed by Ahern Painting Contractors (Ahern). On that date claimant(2) , was on a "spider scaffold" painting a portion of the Kosciuszko Bridge. Claimant was then caused to have his left hand caught and crushed between the bridge's structural steel and the outside metal controller of the scaffold.

The Kosciuszko Bridge is part of the New York State Arterial Highway system (see Highway Law 349-f). Defendant had previously entered into a contract with Ahern for the cleaning, painting and miscellaneous structural steel repairs of the Kosciuszko Bridge. During painting or sandblasting claimant would wear a full face mask. At the time of the accident claimant and his partner, Wilson Avila, were working inside the Brooklyn tower of the bridge. They were working on the "spider scaffold" also known as a two point suspension scaffold. The scaffold has two motors with independent controllers for each side of the scaffold. The particular spider scaffold upon which claimant was working had the controller on the outside of the scaffold.

On the date of the accident, as the scaffold was ascending, claimant's spray line got stuck down on the floor. Claimant stopped his end of the scaffold, however, his partner's side of the scaffold kept rising. At that moment, claimant's hand was on top of the motor where it became caught between the metal plate and the motor. Consequently, claimant's hand was crushed.

John Redmond was employed by Ahern as the foreman assigned to the Kosciuszko Bridge construction project. At a non-party deposition, Mr. Redmond stated that employees of Ahern set up the scaffolds at the work site. He testified that Ahern failed to provide training for the painters on how to use the scaffold and that there were no safety meetings regarding the use of spider scaffolds prior to claimant's accident. Mr. Redmond further testified that there are independent controls for each motor so that if one motor is engaged while the other motor is disengaged then one side of the scaffold would rise while the other would remain stationary. He specifically instructed the painters and sandblasters to watch their hoses as they ascend on the scaffold. He confirmed that there is no guard or other mechanism to prevent an injury occurring between the motor and the structural steel of the bridge. He continued that the scaffold's guardrail could not be raised higher than the controller motor since it would block the workers from conducting their work.

Joseph Faro was employed by defendant and was the engineer in charge of the construction project. Mr. Faro admitted that defendant had the right to compel Ahern to make changes to their site safety plan and that if the plan was not followed he had the authority to stop the project. The only safety equipment provided by defendant at the site was helmets and vests.

Claimant submitted the affidavit of Howard I. Edelson, a Certified Safety Professional, a former Supervisory Safety and Health Compliance Officer with O.S.H.A. and a Space Systems Quality Control Specialist with N.A.S.A. and the U.S. Navy, in support of his claim. Mr. Edelson put forth his professional opinion that the motor control, which was of the fixed position type used to make the scaffold ascend and descend, was unsafe and defective in that it was not provided with a means of locking it in the off position nor was it provided with a guard to prevent accidental activation. Mr. Edelson mentioned the American National Standard Institute, ANSI A10.8, Scaffolding Safety Requirements which states:

Each power operated hoist shall have its own separate control. If the control is of the push-button type, it shall be constant pressure. If it is of the fixed position type, it shall have provision for automatic locking when in the "OFF" position, and shall be guarded against accidental activation.

Mr. Edelson also opines that there was a violation of New York State Industrial Code, Rule 23 (12 NYCRR 23), which states in relevant part as follows:

23-1.5(c) Condition of equipment and safeguards:

(1) No employer shall suffer or permit an employee to use any machinery or equipment which is not in good repair and in safe working condition.

(3) All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.

Defendant, as the party seeking summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Defendant initially avers that since it did not have notice of any defective condition and did not direct or control the work of Ahern's employees, a Labor Law 200 claim cannot be sustained.

Mc Kinney's Labor Law 200 provides in relevant part that workplaces:

"shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."

"Labor Law 200 codifies the common-law duty of an owner or employer to provide employees with a safe place to work (see Jock v Fien, 80 NY2d 965, 967 [1992]). The statute applies, inter alia, to owners and contractors who either created a dangerous condition or had actual or constructive notice of it (see e.g. Gonzalez v City of New York, 304 AD2d 709, 710-711 [2003])" (Linares v United Management Corp.,16 AD3d 382, 384 [2d Dept 2005]).

"The protection of Labor Law 200, however, is not confined to construction work but codifies the common-law duty of an owner or employer to provide employees a safe place to work (see, Jock v Fien, 80 NY2d 965, 967). It applies to owners, contractors, or their agents (see, Russin v Picciano & Son, 54 NY2d 311), who exercise control or supervision over the work, or either created the allegedly dangerous condition or had actual or constructive notice of it (see, Lombardi v Stout, 80 NY2d 290, 294-295; Jehle v Adams Hotel Assocs., 264 AD2d 354; Raposo v WAM Great Neck Assn. II, 251 AD2d 392; Haghighi v Bailer, 240 AD2d 368). Where the alleged dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Lombardi v Stout, supra)" (Yong Ju Kim v Herbert Const. Co., Inc., 275 AD2d 709, 712 [2d Dept 2000]). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law 200" (Dos Santos v STV Engineers, Inc., 8 AD3d 223, 224 [2d Dept 2004], lv denied 4 NY3d 702 [2004]).

Defendant points out that it hired three safety consultants for the construction project: Infratech, B&H and Afridi & Associates. These consultants provided inspectors and monitored the materials used by Ahern. Douglas Townsend, an inspector for Infratech, stated that it was his responsibility to ensure that Ahern performed the work on the construction project in accordance with defendant's contract documents, plans and specifications. If Ahern's work did not conform to the specifications then Mr. Townsend would inform Mr. Redmond. If the problem was not corrected, Mr. Townsend would inform Mr. Faro, who had the authority to stop the work. Mr. Faro visited the construction site once every two weeks. The spider scaffolds were rented by Ahern from a private company and Mr. Townsend ensured that each spider lift had its requisite parts, including cables and a working platform. Ahern employees set up the scaffolds at the work site. Claimant had used a spider lift in the past and was familiar with its operation. There were no prior accidents involving the spray lines getting tangled at the base of the bridge towers. Safety inspectors did not advise Ahern supervisors to assign a laborer to watch the spray lines. Defendant has presented sufficient evidence establishing that its employees did not direct or control Ahern's work at the site, that it merely had supervisory authority at the work site and that it did not have actual or constructive notice of a dangerous condition. In response, claimant has failed to put forward evidence which would raise a triable issue of fact on this point. Mr. Faro's ability to stop the project if the site safety plan was not followed does not rise to the level of control necessary to establish a claim pursuant to Labor Law 200 (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]; O'Sullivan v IDI Const. Co., Inc., 28 AD3d 225 [1st Dept 2006]). Thus, defendant's motion to dismiss claimant's Labor Law 200 claim is granted.

Additionally, defendant argues that since claimant was not injured in an elevation related accident he cannot sustain a Labor Law 240 claim.

Labor Law 240(1) provides:

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, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

"The fact that a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by section 240 (1) of the Labor Law" (Striegel v Hillcrest Heights Development Corp., 100 NY2d 974, 977 [2003]). The statute covers the "special hazards" which are specific to gravity-related accidents such as falling from a height (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). "The core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling" (Nieves v Five Boro Air Cond. & Refrig., 93 NY2d 914, 916 [1999]).

Claimant's injury did not involve a fall but rather was a crush injury caused by the placement of his hand between the outside metal controller of the scaffold and the bridge's structural steel. As such, it was not a gravity-related accident encompassed by Labor Law 240 (O'Brien v Triborough Bridge and Tunnel Authority, 17 AD3d 105 [1st Dept 2005]; Zdunczyk v Ginther, 15 AD3d 574 [2d Dept 2005]; see also Keavey v New York State Dormitory Authority, 6 NY3d 859 [2006]). Accordingly, claimant's claim pursuant to Labor Law 240(1) is also dismissed.

Finally, defendant argues that since the spider lift scaffold constituted proper protection and did not violate any relevant Industrial Codes sections, claimant cannot support an action under Labor Law 241(6).

Labor Law 241(6) provides:

"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."

"Labor Law 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to all persons employed in areas in which construction, excavation, or demolition work is being performed (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 347; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). However, to prevail upon a Labor Law 241(6) claim, a [claimant] must establish that the defendant violated a regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Whalen v City of New York, 270 AD2d 340)" (Miranda v City of New York, 281 AD2d 403, 404 [2d Dept 2001]).

Claimant's expert cites portions of the Industrial Code (12 NYCRR 23-1.5[c][1] and [3]) as well as ANSI A10.8, Scaffolding Safety Requirements, in support of the Labor Law 241(6) claim. However, the general safety provisions contained within 12 NYCRR 23-1.5[c][1] and [3] are an insufficient predicate to support a Labor Law 241(6) claim (Sajid v Tribeca North Associates, 20 AD3d 301 [1st Dept 2005]; Maday v Gabe's Contracting, LLC, 20 AD3d 513 [2d Dept 2005]; Hassett v Celtic Holdings, LLC, 7 AD3d 364 [1st Dept 2004]). As to the ANSI requirement, Labor Law 241(6) requires owners and contractors to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Thus, the ANSI requirement cannot form the basis of a Labor Law 241(6) claim. The Court also finds that, given the facts of this case, the remaining Industrial Code provisions previously raised by claimant but not addressed in this motion are not appropriate predicates for a Labor Law 241(6) claim in this matter.

Therefore, for the foregoing reasons, defendant's motion for summary judgment is granted in its entirety and the claim is hereby dismissed.

September 6, 2006

New York, New York


Judge of the Court of Claims

2. All further references to claimant shall refer to the claim of Wanderlei Gasques as the claim of Elma Gasques is derivative in nature.