BRAY v. THE STATE OF NEW YORK, #2006-030-506, Claim No. 108605, Motion Nos.
AFFIRMED 38 AD3d 583; 2d Dept; 3/13/07
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
GREY & GREY, LLPBY: JOAN S. O’BRIEN, ESQ.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLPBY: THOMAS C. WOLSKI, ESQ. and GLENN J. FUERTH, ESQ.
February 6, 2006
AFFIRMED 38 AD3d 583; 2d Dept; 3/13/07
See also (multicaptioned
The following papers numbered 1 to 11 were read and considered on
Defendant’s Motion for summary judgment [M-70663] and Claimant’s
cross-motion for summary judgment and to amend the bill of particulars
1-4 State of New York’s Notice of Motion; State of New
York’s Amended Notice of
Motion; Affirmation in Support of the
State’s Summary Judgment Motion by
Thomas C. Wolski, Attorney for Defendant, and attached exhibits;
Memorandum of Law
5,6 Notice of Cross-Motion; Affirmation in Support of
Cross-Motion and in Opposition to Defendant’s Motion by Joan S.
O’Brien, Attorney for Claimant, and attached exhibits
Affirmation in further Support of State’s Summary Judgment motion and in
Opposition to the Plaintiff’s (sic) motions for summary judgment
and to amend the bill of particulars by Glenn J. Fuerth, Attorney for Defendant;
Reply Memorandum of Law
in Reply by Joan S. O’Brien, Attorney for
10-11 Filed papers: Claim, Answer
Scott Bray alleges in Claim Number 108605 that he was injured on or about
December 19, 2002 while working for Testwell Labs as a driller when he fell off
a platform at a construction site owned by the State of New York. As clarified
somewhat in his Bill of Particulars, Claimant alleges he slipped in some mud and
stepped into a hole on the platform of a drill rig located at 888 Fountain
Street, Brooklyn, New York, and fell to the ground. [Affirmation in Support of
State’s Summary Judgment Motion by Thomas C. Wolski, Exhibit C, Verified
Bill of Particulars, ¶4]. In its Answer, in addition to general denials,
Defendant raises eleven (11) affirmative defenses, including an Eleventh
Affirmative Defense that the Dormitory Authority of the State of New York
(hereafter DASNY), an entity separate from the State of New York contracted with
the primary contractor for work at the subject site, and a First Defense that
DASNY is the owner of the subject premises.
Defendant moves for summary
judgment dismissing the Claim in its entirety. Defendant argues the Claimant
does not have a valid Labor Law §240(1) cause of action because he was not
involved in a height related accident; does not have a valid Labor Law
§241(6) cause of action because he cannot prove a violation of any
Industrial Code section; and he does not have a valid Labor Law §200 or
common law cause of action because the State of New York did not direct,
supervise, instruct or control the work the Claimant was performing at the time
of the accident, nor is there any evidence suggesting that the State placed the
mud on the platform.
Civil Practice Law and Rules §3212(b) provides in
. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
movant has made a prima facie
showing of entitlement to judgment as a
matter of law by proffering sufficient evidence to eliminate any genuine,
material, issues of fact, the party in opposition to the motion for summary
judgment must tender evidentiary proof in admissible form to establish the
existence of material issues which require a trial. Winegrad v New York
University Medical Center
, 64 NY2d 851 (1985); Zuckerman v City of New
, 49 NY2d 557 (1980). While it is not the best practice, the use of an
attorney’s affirmation appending pertinent deposition testimony,
documentary evidence, and a verified pleading reciting material facts, is not a
fatal procedural flaw in a presentation. Alvarez v Prospect Hospital
NY2d 320, 325 (1986).
In terms of the substantive law controlling the causes of action presented
in the claim, Labor Law §240(1) - the so-called Scaffold Law - imposes
strict liability and requires “. . . [a]ll contractors and owners and
their agents . . . [with some exceptions] 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 work being done should contain an elevation related risk,
and the injury suffered by the worker should be associated with that
Strict liability under Labor Law §241(6) attaches if the owner or
contractor has violated a rule or regulation of the Commissioner of Labor that
sets forth a specific standard of conduct - as opposed to a general statement of
common law principles. Violation of that specific standard must be a proximate
cause of the accident. Ross v Curtis-Palmer Hydro-Electric Company
NY2d 494 (1993); See generally
12 NYCRR §23-1.1 et
Labor Law §200 codifies the common-law duty of an owner or
contractor to exercise reasonable care in providing workers a safe place to
work. Comes v New York State Elec. & Gas Corp.
, 82 NY2d 876, 877
(1993). “Where the alleged defect or dangerous condition arises from the
contractor’s methods and the owner exercises no supervisory control over
the operation, no liability attaches to the owner under the common law or under
Labor Law §200 . . . (citation omitted
Claimant testified at his deposition that on December 19, 2002, he was
performing work for his employer, Testwell Laboratories (hereafter Testwell), as
an environmental and geotechnical driller at a construction
located at 888 Fountain Street, Brooklyn, New York. [Affirmation in Support by
Thomas C. Wolski, Exhibit E]. Guard booths and a fence were to be constructed.
He explained that the geotechnical drilling he was performing is part of an
initial structural investigation done at a work site before actual construction
begins. He was using a drill rig - or truck - parked outside on a grassy area
between the buildings, and using the truck-mounted drill to collect samples.
The drill is mounted on the back of a truck. Control panels on the left side of
the rig - accessible only on the attached truck platform - control the
operations. The drill covers the “whole back of the truck . . . [and]
towers about 20-21 foot high.” [ibid.
Exhibit E, p. 25].
standing on the truck platform, the driller lowers a hydraulic drill and takes
samples at different depths. Samples are taken by first using a
“spoon” which needs to be driven down by the worker through the use
of a “cathead”containing a 140 pound hammer on the right hand side
of the rig. The worker is standing on the ground when he is working the cathead
to drive the hammer.
Once the spoon is driven down, drilling is done. This
part of the operation is done from the platform attached to the truck. The hole
made by the drill is cleaned out using controls on the panel of the machine
located on the left side of the back of the rig, and a pump. After the
cleaning, the worker drills to the next depth.
Claimant indicated that on
December 19, 2002 he had begun taking his third sample when the hose got
clogged. He became aware that the hose was clogged because the pump was not
working. The pump is located on the left side of the rig behind the control
panel up on the deck. Generally, he would not need to touch the pump because it
is operated from the control panel with a lever. When it seemed the pump stopped
working on this day, he thought it might be clogged with water at the top of the
king swivel - a drive unit where the head comes down in the middle of the drill
and is six feet off the ground - largely because this was the location where
such clogs generally occurred. He shut the pump off and reached up for the hose
on the king swivel while standing on the truck platform. As he went to reach
for the hose to pull it off for inspection, he took a step back slipping in the
mud, and fell through a hole in the platform approximately two (2) feet to the
The truck platform’s dimensions were 1 ½ feet by 2 feet
by 2 ½ feet.
Looking at the back of the rig, the hole in which Mr. Bray fell was on the left
side of the back of the rig, and was approximately four inches from the edge of
the platform and was perhaps 6 by 4 inches.
He noted that some unknown
person must have cut out the hole in order to allow anyone driving behind the
rig a better view of the tail light. He also noted that when his employer had
first obtained this rig, there was an additional platform that folded up like a
“bifold”, that allowed the operator additional room to maneuver on
the truck. This platform was not on the rig that day, and Mr. Bray had not seen
the bifold platform for two (2) months.
Testwell had provided him with
protective equipment that day including gloves and a hard hat, and although he
had not operated this particular machine before he was familiar with the basic
mechanisms because of his experience. Mr. Bray explained that it was common for
mud to be “all over the place” during drilling, and it had
accumulated on the platform during his collection of the first two samples on
December 19, 2002. [id.
Layla Bahbahani, employed by DASNY
and assigned as project manager in 2001 to the Brooklyn Developmental Disability
Services Office (DDSO) located at 888 Fountain Avenue, also testified at a
deposition held on March 24, 2005.
[Affirmation in Support of State’s Summary Judgment Motion by Thomas C.
Wolski, Exhibit F]. Although her testimony is appended to Defendant’s
motion papers, it is only referred to briefly in its arguments, thus it is of
limited utility in determining whether it has sustained its initial burden of
establishing that it is entitled to judgment as a matter of law by the
submission of evidentiary proof in admissible form.
In her testimony Ms.
Bahbahani explained that the Brooklyn DDSO is housed in six unconnected
buildings. Four were residential, one is the main building referred to as the
programs building, and the last is a power plant supplying power to all six
buildings. She did not know who owned the property.
In 2002 design and
development of various projects on the property involving DASNY was ongoing.
When she became project manager in 2001, DASNY was overseeing feasibility
studies. DASNY had been hired by the Office of Mental Retardation and
Development Disabilities (hereafter OMRDD) - the “client” - to
engage a consultant to coordinate with the facility concerning their program
p.p. 13-14]. She thought there were three (3) projects in
the design phase at this location.
A company named DMJM and Harris
(hereafter DMJM) had been hired by DASNY prior to her involvement. DMJM had a
contract for an electrical upgrade - one of the three (3) projects - that had
been cancelled, and also had a contract for construction of the perimeter fence,
a fourth project. They had been hired originally to do a feasibility
, and were then given a work authorization to proceed with construction of the
fence. The feasibility study was complete in 2001.
She recalled receiving
the proposal from DMJM for the design of the fence
in 2002 - including a cost proposal - prefatory to DASNY’s issuance of a
work authorization. Indeed, she thought DMJM had an overall contract with DASNY
to provide consulting work, but Ms. Bahbahani was unaware when that agreement
had been entered into.
In 2002 she hired DMJM to design the installation of the fence and internal
roadway. The design was then discussed and reviewed, and a type of fence was
chosen. The only physical work done in relation to the perimeter fence however,
was borings for soil samples, and property surveys. She recalled that Testwell
had been hired by DMJM to do the borings and had approved of the hire by
p. 41]. She herself never saw any written
agreement between Testwell and DMJM to do the boring.
The sub contract
between Testwell and DMJM dated December 16, 2002 refers to and attaches a prime
contract dated February 8, 1999 between DASNY and DMJM relative to feasibility
studies for the installation of a perimeter fence and interior roadways.
[Affirmation in Support of Cross-Motion by Joan S. O’Brien, Exhibit 3]. A
copy of the prime contract referred to in the subcontract was not submitted by
Ms. Bahbahani testified she had no knowledge of Mr. Bray
doing boring work on December 19, 2002, but did now know that Testwell did the
boring on December 19, 2002 because she received a telephone call from a New
York State Department of Transportation (hereafter DOT) employee on April 9,
2003 asking if she had any information about Mr. Bray being injured.
Bahbahani also testified that she had been advised prior to December 19, 2002
what day or days the work was to be done by Testwell, and understood that the
work would take more than one day. She did not find it necessary to assign any
DASNY employee to the site during the soil sampling, nor did she understand that
anyone from DMJM would be present during Testwell’s performance of the
work. She explained that this was “common practice” and that
“the experts go out and do borings at the location and do tests and report
back to us.” [Affirmation in Support of State’s Summary Judgment
Motion by Thomas C. Wolski, p. 55].
With respect to the need for soil
samples, she confirmed what was said by Mr. Bray that the boring is done to
“find out the integrity of the soil, for installation of the fence and for
the construction of the internal roadways.” [id.
p. 50]. The last
time she was involved with the project was August 2003. A temporary fence was
installed at the location.
Because cross-motions for summary judgment have
, the Court is not constrained to limit itself to viewing the evidence in the
light most favorable to the non-moving party, but rather has searched the record
to determine whether there are material issues of fact warranting a plenary
Labor Law §240(1)
With respect to the Labor Law §240(1) cause of action, the Defendant
does not challenge its status as an owner subject to the statute, but addresses
only the issue of whether Claimant herein was engaged in the type of work
involving an elevation related hazard which the statute was designed to protect.
To establish whether strict liability will apply to a particular set of facts,
the question is whether there is “a significant risk inherent in the
particular task because of the relative elevation at which the task must be
performed.” Rocovich v Consolidated Edison Co., 78 NY2d 509, 514
(1991). While it may be true that a routine fall off a flatbed truck does not
constitute an elevation-related injury [See Toefer v Long Island
Railroad, 4 NY3d 399 (2005)], the result may be different where a worker is
using a truck as a substitute for a scaffold in order to do work that requires
that the worker be elevated to perform it. See e.g. Myricks v
Hiawatha Realty Corp, 9 Misc 3d 1104(A), 2005 WL 2171174.
v Long Island Railroad, supra, the worker had been assigned with
another man to unload steel beams from a flat bed truck. To perform the task,
they stood on the truck’s platform, some four feet above the ground, and
pried the steel beams off the truck using wooden poles as levers. By this
method, the beams would then fall to the ground. They had successfully pried
off one beam, but when they unloaded the next beam, one of the poles flew back
at the worker, striking him in the head and pushing him backwards over the
unloaded beams to the ground on the other side of the truck.
the dismissal of the worker’s Labor Law §240(1) cause of action, the
Court of Appeals referred back to Rocovich v Consolidated Edison Co.,
supra, and explained that Rocovich identified
“two distinct sources of elevation-related risk: ‘the relative
elevation at which the task must be performed’ and the elevation ‘at
which materials or loads must be positioned or secured.’ In Narducci v
Manhasset Bay Assoc., 96 NY2d 259, 267 . . . (2001), we described cases
involving these risks as ‘falling worker’ and ‘falling
object’ cases respectively . . . ’ Not every worker who falls at a
construction site . . . gives rise to the extraordinary protections of Labor Law
§240(1)’ . . . [W]here a plaintiff ‘was exposed to the usual
and ordinary dangers of a construction site, and not the extraordinary elevation
risks envisioned by Labor Law §240(1)’, the plaintiff cannot recover
under the statute . . . (citation omitted).” Toefer v Long
Island Rail Road, supra, at 407.
described the worker in the case before it as
“working on a large and stable surface only four feet from the ground.
That is not a situation that calls for the use of a device like those listed in
section 240(1) to prevent a worker from falling. Plaintiffs in Toefer argue that
a hoist, which is one of the devices listed in the statute, should have been
used instead of wooden poles to lower the beams from the truck, but this
argument misconceives the issue. Labor Law §240(1) is arguably implicated
in this case only because . . . [the worker] fell from the truck’s trailer
to the ground. The purpose of a hoist here would not have been to prevent . . .
[him] from falling; it would have been to prevent the beams themselves from
doing damage. But . . . [the worker] was not injured by a beam, or by any
falling object; the object that struck him inexplicably flew at him either
upwards or horizontally. His injury . . . is not attributable to the sort of
elevation-related risk that Labor Law §240(1) was meant to address.”
Toefer, supra at 408.
In Marvin v Korean
Air, Inc., 4 NY3d 399 (2005), the companion case decided with Toefer,
the Court of Appeals also determined that the worker’s fall four to five
feet from a flatbed trailer was not covered. The truck had been brought to the
construction site, and contained paneling material that was secured by steel
straps. The worker was assigned to cut off the steel straps. After he had
completed the assigned task, he “crouched and began to step off the
truck, but his foot became tangled in a safety harness he was wearing and he
fell . . . ” Marvin v Korean Air, Inc., supra at 406. The
“A four-to-five foot descent from a flatbed trailer or similar surface
does not present the sort of elevation-related risk that triggers Labor Law
§240(1)’s coverage. Safety devices of the kind listed in the statute
are normally associated with more dangerous activity than a worker’s
getting down from the back of a truck. Obviously, the distance between the work
platform and the ground is relevant; no one would expect a worker to come down
without a ladder or other safety devices from a work platform that was 10 feet
high. But the lesser distance Marvin had to travel, considering the nature of
the platform he was departing from, was not enough to make labor Law
§240(1) applicable.” Marvin v Korean Air, Inc., supra,
To the same effect are cases involving falls
from trucks where the truck has moved suddenly, throwing the worker
or cases where the worker - while engaged in a non-elevation related task on the
truck - has not properly negotiated alighting,
or cases involving both a moving truck and alighting.
Interestingly, one trial court has determined that strict liability under
Labor Law §240(1) would apply to the facts before it, and is helpful here.
Myricks v Hiawatha Realty Corp
. In Myricks
worker had been directed to erect a fence around the perimeter of the parking
lot property by his employer, the lessee of the property. To perform the task,
the lessee had provided the worker with a “15-pound pole hammer, a type of
sledge hammer requiring the use of two hands, to drive the poles into the ground
. . . [He] stood on the bed of . . . [the lessee’s] truck, which was about
five and one-half to six feet above the ground, and swung the pole hammer at a
pole placed in the ground . . . [His] swing missed the pole, and he fell off
the back of the truck, doing a partial somersault and landing on his
After disposing of preliminary arguments posed by Defendants to the effect
that the parking lot was not a structure, by indicating that a fence was; and
that the worker was performing routine maintenance, by pointing out that the
worker was erecting a new structure; the Court rejected the Defendants’
attempt to have it hold to a “bright-line” rule that would provide
that falls from the flatbed of a truck are not covered. Instead, the Court said
that in the cases cited by Defendants,
“the task that the worker performed did not require the worker to be
elevated. For example, the height of the platform from which a worker is moving
a load - whether it is a flatbed truck several feet off the ground or the ground
itself - is immaterial to the task involved. The task therefore does not pose an
elevation-related hazard within the purview of Section 240(1) . . . [T]he
flatbed truck from which . . . [the worker] fell was the functional equivalent
of a scaffold because the work he was performing at the time of the accident
required him to be elevated. In order for . . . [him] to perform his task of
pounding eight-foot-long metal poles into the ground, he had to be elevated to a
height from which he could effectively swing the pole hammer down onto the
poles. Whether . . . [the worker] achieved that relative elevation by climbing
up onto a flatbed truck, a platform or a scaffold is immaterial. The work. . .
. [he] performed at the time of his fall involved an elevation risk and thus was
within the scope of Section 240(1) liability.”
its Reply Memorandum of Law, the Defendant in the case at bar suggests that it
was the threat that the momentum of the hammer could propel the plaintiff off
the platform that drove the trial court’s finding of liability in
, and that Mr. Bray, merely pushing levers, was not exposed to the
same risk: a kind of brawn versus brains approach. This is too narrow an
interpretation of tasks involving elevation related risks.
More in keeping
with the reasoning of Myricks
is Lightfoot v State of New York
245 AD2d 488 (2d Dept 1997), where a worker standing on top of a truck painting
bridges - using the truck as a scaffold essentially - was found to have made a
showing of strict liability under Labor Law §240(1) when
the safety guardrail on the truck collapsed, he fell, and suffered
According to the evidence submitted herein, there is no meaningful dispute
as to the mechanics of Claimant’s accident. From the uncontradicted
factual description given, it seems that the operation of the tool required that
the worker be two feet off the ground on the small truck platform that was being
used as a scaffold. Certainly, portions of the task - such as operating the
cathead - involved standing at ground level. To operate the levers, however,
Claimant needed to stand on the platform being used as a scaffold. It is
undisputed that the scaffold provided was small, slippery, and contained a hole.
It is undisputed that Claimant reached for the hose, slipped, and his foot
slipped through a hole in the platform. Clearly, the defective condition was a
proximate cause of Claimant’s injury. The Claimant is entitled to partial
summary judgment on the issue of liability with regard to his Labor Law
§240(1) cause of action.
Labor Law §241(6)
As noted, strict liability for violation of explicit Industrial Code rules
will be imposed upon an owner, based upon its non-delegable duty to provide
reasonable and adequate protection and safety to construction workers. Labor Law
§241(6); 12 NYCRR §23-1.1 et seq
; Ross v Curtis-Palmer
. A broad, non-specific rule or
regulation is not sufficient to maintain a cause of action under Labor Law
According to the Verified Bill of
, Claimant asserts violations of 12 NYCRR §§23-1.5(a); 23-1.7(b) and
(f); 23-1.8 (c); 23-1.11; 23-1.15; 23-1.16; 23-1.21; 23-1.30; 23-5.1; 23-5.2;
23-5.6; 23-5.12; 23-5.13; 23-5.15 and 23-5.16. [Affirmation in Support of
State’s Summary Judgment Motion, Exhibit C]. The cross-motion to amend
the Bill of Particulars seeks inclusion of alleged violations of 23-1.7(d) and
(e) and 23-2.1(b).
Defendant correctly argues that §§23-1.5 and
23-5.1 are merely general safety standards, and insufficient to trigger the
duties imposed by Labor Law §241(6) because they are too general in nature.
Maldonado v Townsend Avenue Enterprises
, 294 AD2d 207, 208 (1st Dept
2002); Schiulaz v Arnell Construction Corp.
, 261 AD2d 247, 248 (1st Dept
1999); Creamer v Amsterdam High School,
241 AD2d 589, 591 (3d Dept
Similarly, many of the code sections cited are simply inapplicable
because they do not apply to the facts presented in this case. Thus,
§23-1.8(c), referring to protective apparel, does not apply; nor do
§23-1.11, referring to lumber and nail fastenings; or §23-1.21,
referring to ladders and ladderways; or §23-1.30, referring to
illumination. Since there were no railings [§23-1.15] or safety harnesses
[§23-1.16] used, how they were constructed or whether they had been
inspected is not pertinent. Luckern v Lyonsdale Energy Limited
, 281 AD2d 884, 887 (4th Dept 2001).
The series of
regulations cited referring to safety standards for types of scaffolding not
present here are also inapplicable. Thus §§23-5.6 [pole scaffolding];
23-5.12 [horse scaffolding]; 23-5.13 [carpenters’ portable bracket
scaffolds]; 23-5.15 [lean-to scaffolds]; and 23-5.16 [trestle and extension
trestle ladder scaffolds] do not apply. With regard to §23-5.2 -
indicating generally that only scaffolds described in the rule may be used
unless specially approved - this provision is also too inexplicit.
regulation about which the State has notice that is discussed by Claimant - as
opposed to those that Claimant asks to add to his Bill of Particulars by his
cross-motion - is 12 NYCRR §23-1.7(b) (1) regarding hazardous openings.
The mechanics of Claimant’s accident are that he slipped in mud, then his
foot fell through an opening in the platform that was 6 by 4 inches in
dimension. What constitutes a hazardous opening has been limited in case law,
for example, to those of a “significant depth and size . . .” for a
person to fall through. D’Egidio v Frontier Insurance Company
AD2d 763, 765 (3d Dept 2000), lv denied
, 95 NY2d 765 (2000); see also
Rice v Board of Education of City of New York
, 302 AD2d 578 (2d Dept
2003), lv denied
, 100 NY2d 516 (2003); Alvia v Teman Elec.
, 287 AD2d 421 (2d Dept 2001), lv dismissed
, 97 NY2d
749 (2002). The regulation is not applicable to the facts here.
§23-1.7(f) - also recited in the Verified Bill of Particulars -
providing that vertical access should be provided to working levels above or
below ground through stairways, ramps or runways, is likewise inapplicable.
Accordingly, based upon the Industrial Code regulations cited as violated
in the present Bill of Particulars, and the uncontradicted facts presented,
Claimant’s Labor Law §241(6) cause of action is dismissed as a matter
Labor Law §200 and Common Law Negligence
From the only evidence submitted, the State of New York clearly did not
exercise any control or supervision over the Claimant’s work, and thus
cannot be held liable under Labor Law §200 or common law negligence
theories. Comes v New York State Elec. & Gas Corp., supra.
Cross-Motion to Amend Bill of Particulars
While the Court agrees that the application to amend the Bill of
Particulars on the heels of Defendant’s motion for summary judgment is
prejudicial - particularly in light of Claimant’s attestation in a note of
issue and certificate of readiness filed June 15, 2005 that service and filing
of the Bill of Particulars has been completed, with no indication that any
amendment would be sought or any rights had been reserved - the Court has
nonetheless considered whether inclusion of alleged violations of Industrial
Code §§23-1.7(d) and (e), and 23-2.1 would allow Claimant’s
cause of action under Labor Law §241(6) to go forward. If the amendment
would be “futile”, then it should not be allowed. See
Castillo v Starrett City, Inc., 4 AD3d 320, 322 (2d Dept
As an initial matter, Industrial Code §23-2.1 has been found to
be too general to serve as the basis for a cause of action under Labor Law
§241(6). Quinlan v City of New York, 293 AD2d 262 (1st Dept 2002).
Accordingly, this regulation would not apply here.
concerns slipping hazards, and has been found to exclude those slipping hazards
constituting an integral part of the work involved. Salinas v Barney Skanska
Construction Co., 2 AD3d 619, 622 (2d Dept 2003)(Section is
“inapplicable because the demolition debris upon which the plaintiff
slipped was not the type of foreign substance contemplated by this provision . .
. (citations omitted).”); Gist v Central School
District, 234 AD2d 976, 977 (4th Dept 1996)(“The water sealant upon
which plaintiff slipped does not constitute a foreign substance within the
meaning of . . . [the] regulation but is an integral part of the new roof that
was being constructed
. . . (citations omitted).” );
But cf. Beltrone v City of New York, 299 AD2d 306 (2d Dept 2002)
(Triable issue of fact whether oil on platform caused by oil leak that should
have been corrected as opposed to part of the work.); Ventura v Lancet
Arch, Inc., 5 AD3d 1053, 1054 (4th Dept 2004)
(“. . . [T]he fact
that the spilled wet mortar was generated by the work being performed does not
compel the conclusion that it is not a ‘foreign substance which may cause
slippery footing’. . .” Plaintiff fell on wet mortar that had
accumulated on a sheet of plywood used as a platform for a mortar mixer when he
attempted to move the mixer.).
In this case, the mud generated - based
upon the uncontradicted description of his work given by Claimant - is not the
type of slippery foreign substance the regulation protects
Similarly, §23-1.7(e) concerns tripping hazards in passageways
and working areas. What is contemplated under the provision concerning working
areas is that the area “. . . be kept free from accumulations of dirt and
debris and from scattered tools and materials . . . ” From the
uncontradicted description of the incident, and the hazard presented, this
regulation does not apply either.
Claimant’s application to amend his
Bill of Particulars to include additional, un-noticed violations of the
Industrial Code is denied for procedural and substantive
Accordingly, Defendant’s motion for partial summary judgment
is denied in part and granted in part, and Claimant’s cross-motion for
partial summary judgment is granted in part and denied in part, and
Claimant’s cross-motion to amend the Bill of Particulars to include
additional Industrial Code violations is denied. The First, Second, and Fourth
Causes of action are dismissed in their entirety; and Claimant’s
cross-motion for summary judgment on the issue of liability is granted with
respect to the Third Cause of Action alleging violation of Labor Law
Let interlocutory judgment be entered.
Trial on the issue
of damages alone will proceed on June 6, 2006.
February 6, 2006
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
“A fair reading of the
attorney’s affirmation, the hospital records and the defendant’s
deposition testimony compel the conclusion that no material triable issues of
fact exist as to the claims of malpractice asserted against the defendant in the
amended complaint as amplified by the bill of particulars. The fact that
defendant’s supporting proof was placed before the court by way of an
attorney’s affirmation annexing deposition testimony and other proof,
rather than affidavits of fact on personal knowledge, is not fatal to the motion
. . . (citations omitted
In a footnote, Counsel for the Defendant
indicates “for the purposes of this motion, it is assumed that the
incident occurred on a construction site, however, this assumption is expressly
denied by the State.” [Affirmation in Support of State’s Summary
Judgment Motion by Thomas C. Wolski, Page 4]. Since no argument addresses
whether this was a construction site, and no facts are highlighted for any such
theoretical argument, the notation has been ignored.
Although no photograph of the actual rig
has been provided, in his deposition Claimant described the dimensions of the
platform as stated, and Counsel refers to photographs appended to
Claimant’s moving papers as depicting similar rigs, including the small
Affirmation in Support of Cross-Motion by Joan S.
O’Brien, Exhibit 4].
An unmarked and mis-collated transcript
of this deposition is appended to Defendant’s papers, and presumably was
intended to be marked as Exhibit F, and will be referred to herein by that
exhibit number. The deposition was taken in connection with a lawsuit commenced
against DASNY and DMJM & Harris - the primary contractor - in the Kings
County Supreme Court.
Affirmation in Support of Cross-Motion
by Joan S. O’Brien, Exhibit 1.
Affirmation in Support of Cross-Motion
by Joan S. O’Brien, Exhibit 2.
Notably the agreement - read to her at
her deposition but not attached here - refers to DASNY as the
“owner”, and refers to Harris Energy Systems, a division of
Frederick R. Harris, Inc., as the “engineering consultants.” She
did not know whether DMJM and Harris was a division and subsidiary of Harris
Energy Systems, a division of Frederick R. Harris, Inc.
Pursuant to Civil Practice Law and Rules
§3212(b), if the Court finds that summary judgment should be granted to any
party, it may be granted without the necessity of a cross-motion with regard to
a cause of action in issue that is the subject of a motion properly before the
court. See Dunham v Hilco Construction Co. Inc.
, 89 NY2d 425,
429-430 (1996); Kaferstein v J.P. Morgan Chase & Co.,
9 Misc 3d 1078,
1079-1080 (Sup Ct, NY County 2005); cf. Brill v City of New York
2 NY3d 648 (2004). Thus, the Court is not overly concerned with whether
Claimant’s cross-motion is timely or not. Notably, it is part of its
opposition to the motion in chief.
 See Dilluvio v City of New
, 264 AD2d 115 (1st Dept 2000).
1 Marvin v Korean Air Inc
1 Hughes v County of Nassau
AD2d 476 (2d Dept 2001).
No page numbers are available for
1 But see Watson v Hudson
Valley Farms, Inc.
, 276 AD2d 1004,1005 (3d Dept 2000) (Plaintiff fell from
flatbed truck parked next to the side of truck trailer he was painting; although
Labor Law §240(1) will apply, there is issue of fact precluding summary
judgment because no evidence that “safety device [flatbed of truck]
collapsed, slipped or otherwise failed to support the worker . . . [and]
conflicting evidence as to whether plaintiff ‘misstepped’ or tripped
as a result of a defect in the flatbed.”)
Court Rules require that all papers
that are served upon a party must be filed in the Office of the Chief Clerk of
the Court of Claims. 22 NYCRR 206.5(c). Claimant does not appear to have filed
the Verified Bill of Particulars or his Supplemental Verified Bill of
Particulars as required, and is directed to do so.