New York State Court of Claims

New York State Court of Claims

VENEZIA v. THE STATE OF NEW YORK, #2007-010-015, Claim No. 109981, Motion No. M-72528


Synopsis


Defendant’s motion for summary judgment is granted. Labor Law 241(6) worker tripped on staked bale of hay which was integral to work site.

Case Information

UID:
2007-010-015
Claimant(s):
DAMIAN VENEZIA
Claimant short name:
VENEZIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109981
Motion number(s):
M-72528
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
SACKS AND SACKS, LLPBy: Scott N. Singer, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: COZEN O’CONNOR, P.C.Eric J. Berger, Esq., Of Counsel
Third-party defendant’s attorney:

Signature date:
June 27, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-5 were read and considered by the Court on defendant’s motion for summary judgment dismissing the claim and oral argument was heard on May 17, 2007:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Attorney’s Affirmation in Opposition and Exhibit, Memorandum of Law..............2

Reply.........................................................................................................................3

Claimant’s Supplemental Memorandum of Law ....................................................4
Defendant’s Reply to Claimant’s Supplemental Memorandum of Law...................5

Defendant seeks summary judgment dismissing Claim No. 109981. Claimant does not oppose the dismissal of the causes of action alleging a violation of Labor Law §240 and a violation of Labor Law §241(6) insofar as it is based upon 12 NYCRR 23-1.5 (Affirmation in Opposition at ¶2). Accordingly, defendant’s application is GRANTED as to those allegations of the claim.

The remaining allegations in dispute are the Labor Law § 200 claim and the Labor Law §241(6) claims based upon 12 NYCRR 23-1.7(e) Tripping and other hazards and 12 NYCRR 23-2.1 Maintenance and housekeeping.

The undisputed facts are as follows. On October 5, 2004, claimant, an ironworker employed by Granite Halmar Construction (Halmar) was injured while working on a State construction project on the Taconic State Parkway in Westchester County. The project entailed widening the parkway and reconstructing exit ramps and bridges. Claimant’s accident occurred when claimant returned from lunch, picked up his tool belt, and fell. According to claimant’s deposition testimony, “[t]hat’s when I tripped on the rebar” (Defendant’s Ex. D, p 52).

It is undisputed that the rebar was used in a vertical manner to stake down bales of hay that were approximately eight inches high. It was also undisputed that this was the customary and usual manner of practice. Claimant explained at his deposition that the rebar was stuck through the bale of hay and into the ground (Defendant’s Ex. D, p 53). Claimant testified that his accident occurred when he picked up his tool belt and then stepped back so that another worker could pick up his tool belt and the rebar caught claimant’s pant leg just above the cuff (Defendant’s Ex. D, pp 52-53). Notably, the rebar is vertically positioned in the bale of hay, which is eight inches high, and there is no indication that the rebar was sticking out of the side of the bale of hay. Claimant stated: “I started to fall straight back. So instead of falling straight back, I went to catch myself, and I jumped to catch myself and landed (emphasis added) on a chuck of concrete” (Defendant’s Ex. D, p 54).[1]
Labor Law §241(6)
The bales of hay had been placed by Halmar at approximately 100 locations along the parkway for control of storm water pollution and soil erosion during the construction project (Defendant’s Ex. E., pp 37-38) and it was undisputed that they were stacked vertically with rebar. Accordingly, the rebar upon which claimant allegedly tripped was not a tripping hazard, as contemplated by 12 NYCRR 23-1.7(e), but rather an integral part of the work being performed; therefore the Labor Law §241(6) claim based on this section warrants dismissal (see O’Sullivan v IDI Const. Co., Inc., 7 NY3d 805 [Labor Law §241(6) claim based on 12 NYCRR 23-1.7(e)(1) and (e)(2) failed because electrical pipe that that worker tripped over was “an integral part of the construction”]; Castillo v Starrett City Inc., 4 AD3d 320, 322 [Section 23-1.7(e)(2) inapplicable because worker installing insulation tripped on piece of insulation which was “an integral part of the work he was performing”]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [Section 23-1.7(e)(2) was inapplicable because demolition debris created by plaintiff and co-workers was “an integral part of the work being performed”]).

Claimant argues that “integral part of the work” is “limited to instances where the hazard forms a permanent part of the construction being built and is part of the work that the plaintiff, personally, is performing” (Claimant’s Supplemental Memorandum of Law, p 2). The Court does not find claimant’s proffered formulation persuasive and, more pointedly, the cases do not support it. The cases cited by claimant do not support his argument that a two-fold requirement must be met to establish “integral part of the work.” Rather, the analysis set forth in each case is focused on whether the dirt, debris, or obstruction presented a condition which could cause tripping or whether the condition was integral to a work site or the work being performed.

In Stafford v Viacom, Inc., 32 AD3d 388, the Second Department held that an electrician who allegedly slipped and fell on glue at a renovation project inside a building could not maintain a Labor Law §241(6) claim based upon a violation of 12 NYCRR 23-1.7(d) “since applying the glue on the floor was an integral part of the installation of the carpeting or floor tiles” (Stafford v Viacom, Inc., supra at 390). Contrary to claimant’s argument, the Second Department in Stafford, did not require a showing that the electrician was personally performing carpet or floor installation. Similarly, in Furino v P & O Ports, 24 AD3d 502, a worker tripped on nails in a trailer while unloading crates of chairs. The nails came from “chocks,” pieces of wood with nails in them, used to hold the crates in place while the trailer was being driven. The Second Department held that the Labor Law §241(6) claim warranted dismissal because the worker was not engaged in construction and “liability cannot be based on 12 NYCRR 23-1.7(e)(2) because the plaintiff allegedly tripped on an object that was an integral part of the work he was performing” (id. at 504). Again, the Second Department did not require a showing, as argued by claimant’s attorney, that the nails were a permanent part of a structure being built. Finally, defendant submits a number of cases in its reply to claimant’s Supplemental Memorandum of Law which also refute claimant’s argument that “integral part of the work” is limited to cases which satisfy a two-fold requirement (see Boyd v Mammoet Western Inc., 32 AD3d 1257 [worker tripped over the horn of a fire extinguisher hose; object tripped over was integral part of the work being performed]; Schroth v New York State Thruway Auth,. 300 AD2d 1044 [sandblasting hose upon which claimant tripped did not constitute debris or scattered tools and material within meaning of 23-1.7(e)(2); rather it was integral to work being performed]; Sharrow v Dick Corp., 233 AD2d 858 [iron worker tripped on tubular extension attached to hoist; hoist held to be an integral part of work being performed]).

The Labor Law §241(6) claim based upon 12 NYCRR 23-2.1 warrants dismissal because §23-2.1 lacks the specifity required to qualify for predicate liability under Labor Law §241(6) (see Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622).
Labor Law §200
Labor Law §200 is a codification of the common-law duty imposed on an owner or general contractor to provide a safe work place for workers at a construction site. The Court of Appeals has held that an implicit precondition to this duty is that the party charged with responsibility have the authority to control the activity bringing about the injury. Where the alleged dangerous condition arises from the contractor’s methods and the owner does not exercise supervising control, no liability will attach to the owner (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Here, there has been no showing of the level of supervisory control by defendant sufficient to impose liability under Labor Law §200 (see Lombardi v Stout, 80 NY2d 290, 295; O’Connor v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513). General supervisory authority for purposes of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see Toefer v Long Is. R.R., 308 AD2d 579; Alexandre v City of New York, 300 AD2d 263). Moreover, claimant has failed to establish the existence of a dangerous condition of which defendant either created of which existed for a sufficient period of time so as to permit defendant the opportunity to discover and remedy (see Daniely v County of Westchester, 297 AD2d 654).

Accordingly, defendant’s motion for summary judgment dismissing the claim is GRANTED (CPLR 3212).

It is also noted that the claim warrants dismissal for failure to comply with the jurisdictional requirements of § 11(b) of the Court of Claims Act which mandates that the claim shall state the total sum claimed (see Kolnacki v State of New York, 8 NY3d 277, 281 [“nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary”]; Nasir v State of New York, ___ AD3d ___, 2d Dept, June 19, 2007).



June 27, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].As noted above, claimant’s testimony is that he “tripped” on the rebar and “landed” on a chunk of concrete (Defendant’s Ex. D, pp 52, 54). Accordingly, the concrete did not act as a tripping hazard which contributed to claimant’s fall.