Claimant Jarnail Singh was injured on November 21, 2003, at about 4:00 p.m.
while working at a New York State-owned facility on Wards Island known as Kirby
Forensic Psychiatric Center, hereafter referred to as “Kirby.” It
is alleged that a grinder he was using to cut out bricks stuck, causing him to
jerk on it to free it. When it released from the brick, it twisted and the
exposed blade cut into his right hand.
is a bifurcated claim, and the following decision concerns only the issue of
A preliminary pivotal issue relates to the nature and status of
Claimant’s employment. He claims that he had been employed by Citi
Buildings Renovation Inc. (Exhibit 8; hereafter Citi Buildings), yet the
“principals” of that company deny that was the case. Hence the
matter devolves to which party is more credible, since there is no documentation
before me that speaks to, let alone verifies, Claimant’s status as a
laborer for Citi Buildings on this project. If I determine that he was so
employed, then I am required to examine whether the Defendant violated
§241(6) and/or §200 of the Labor Law.
Resolution of the issue of credibility is the simpler of the two, and I find
that based on the preponderance of the credible evidence before me Claimant was
in fact employed by Citi Buildings on the day of the accident. A little
background is required to explain my conclusion.
Kirby is a secure facility owned and operated by the State of New York.
Claimant, along with his brother Harbhajan Singh (Harbhajan), had been hired by
Citi Buildings to remove bricks from a wall located in a tower structure at
Kirby, as well as to perform some pointing of bricks in the tower. Citi
Buildings was not the general contractor on the project but apparently was the
subcontractor. The use of the disclaimer “apparently” will appear
throughout this decision because of the obfuscatory testimony given by the
principals involved. The Defendant had contracted with Chase Building
Renovation, Inc. (Chase) for the work (Exhibit 5) and it in turn had apparently
subcontracted some of the work to Citi Buildings.
One of the more interesting aspects of this case involves the exact
relationship of these two companies and their principals. Apparently the
President of Chase, Rana Usmani, had acquired ownership of that company from his
brother-in-law, Muhammad Rao, sometime prior to the contract. Muhammad Rao, in
turn, was the owner of Citi Buildings, and he apparently employed his brother,
Younas Ali Saleem, to hire workers for the project at Kirby. Claimant and his
brother claim they were hired by Muhammad Rao to work for Citi Buildings on the
Kirby job and were doing just that on the day of the
They also stated that they had
worked for these people on at least one other occasion and knew them prior to
the Kirby job. A further interesting twist to what was and is a very twisted
fact pattern, replete with an ever-changing landscape of credibility issues,
Claimant stated that he, as well as other workers, received their pay in plain
envelopes and never received the benefits to which they were entitled by law
The site of the accident was Building #105 at Kirby. According to the
witnesses, in order to gain access to this building and the work site, since it
was a secure facility, it was necessary for workers to sign in, after which
they were given a badge of some sort that allowed access to the facility and to
an enclosed portion of the roof where the work was being done. The Singh
brothers said that they had to produce identification in the form of a photo ID
and also to have their pictures taken when they first reported to the work site,
for security purposes. Thereafter, each day they reported to work and signed
in, each was issued a badge at the security booth. Each evening upon leaving
the work site, as they passed the security booth, they returned the badges. The
logs which purportedly memorialized these events were unable to be produced at
trial since they had apparently not been preserved despite the pendency of this
In order to get from the ground floor to the situs of the work, Claimant and
his brother stated that it was necessary to take an elevator to the top floor
then enter the tower and walk up the remaining three flights of stairs to the
work area, including the roof (Exhibits 1 and
The Claimant and his brother were working
in the tower on the accident date but not next to each other. When the accident
occurred, Claimant’s brother Harbhajan was in a different corner of the
tower and did not see it when it happened. Harbhajan went to Claimant when told
of the injury and someone at the scene stated that they had called down to the
“boss” who came to the tower and told the workers that he would take
Claimant to the hospital. The “boss” in this case was Younas Ali.
I say “in this case” because it was never made clear who was a boss,
who was an owner, or a worker, since these titles seemed to be interchangeable
depending on who was testifying or perhaps what day of the week it happened to
be. As may be surmised, the reality remains quite elusive.
Regardless, Claimant apparently was not taken directly to the hospital by
Younas Ali, but rather to a private doctor who, upon seeing the severity of the
injury, informed Mr. Ali and Claimant that hospital treatment would be required.
Claimant was then taken by Mr. Ali to Elmhurst Hospital for treatment. Since
this is a bifurcated trial, no hospital records were provided to corroborate
Claimant’s testimony which, while not necessary, might have been helpful.
Claimant was released from the hospital that day. He never returned to work nor
was he ever again employed by either Citi Buildings or Chase.
Claimant stated that while working at the site, the machinery he used was
supplied by Citi Buildings and that the grinder he was using did not have a
guard. He explained that a guard would have prevented him from being able to
effectively do the job of cutting into the brick to remove it. He did recall
seeing a State inspector on the job site and was able to describe him. He
admitted that he was unable to produce any documentation to support his claim of
employment and/or injury at Kirby.
His brother, Harbhajan Singh, gave essentially the same account of the
nature of their employment; the prior work history and association with Citi
Buildings and its principals; the manner in which they were paid in cash and
never received any benefits; the process and procedure to be admitted to Kirby
for work, as well as leaving at the end of the day; the fact that they were
never given any documentation showing they were employed by Citi Buildings other
than a business card (Exhibit 17); that he saw Claimant’s injury at the
work site but did not accompany him to the hospital, and that Younas Ali took
Claimant to the hospital. He also stated that he continued to work for Citi
Buildings for at least one year after his brother’s accident.
Not surprisingly, Defendant denies that Claimant was ever employed by Citi
Buildings or Chase. It relies upon the lack of a paper trail and that the
payroll sheets provided at trial by Chase (Exhibit 7) fail to list Claimant or
his brother as employees. Further, the Defendant relies on the fact that there
are no records of any work being done at Kirby on the day of the accident.
This was “confirmed” by Rana Usmani and Muhammad Rao at trial. I
cannot ascribe plausible credibility to their testimonies, which were evasive,
contradictory, and in some aspects wholly disingenuous. For instance, Rana
Usmani stated that he performed no work at Kirby during the entire month of
November as he could not hire any workers, yet the payroll records show
otherwise (Exhibit 7, pp. 4 & 5). In addition, he stated that another
reason there was no work performed in November 2003 was due to weather. He
stated that they would not work if the temperature was below 50 degrees and for
that reason no work was done at Kirby from November 1 to November 23, 2003,
although there was testimony that during this period there were 22 days above 50
degrees (Transcript, pp.196 - 204).
attempted to explain away the failure to work due to his purported inability to
hire any workers, I find that his testimony was not credible.
Muhammad Rao testified that he did not work at Kirby during November, but Rana
Usmani testified that there was work being done at the site. The State
inspector, Howard Thompson, also refutes both men, as he recalled work was
performed, weather permitting, during November 2003. Mr. Rao also stated that
he had never seen Claimant at the site, and indeed not until the trial herein
(Transcript , pp. 146-147). This statement was later contradicted by him when,
despite his earlier statement that he never saw Claimant at the site, he related
that he in fact did see him, but thought that he was working for the electric
company (Transcript, pp. 169-170). In sum, I have given no weight to either
Regarding the lack of documentation of their employment by Citi Buildings, I am
urged to conclude that the Singh brothers, whose testimony is the more
compelling, were fabricating their story. In light of the credibility problems
of the principals of Citi Buildings, it is just as likely that the Singhs were
being paid off the books, as Claimant impliedly intimates.
The fact that I have concluded that Rao and Usmani are not credible and that
Claimant was in fact injured while working for Citi Buildings at Kirby in the
manner that he testified to, does not inevitably lead to the conclusion that
the Defendant is liable in this instance and violated §200 and/or
§241(6) of the Labor Law.
On the day of the accident Claimant was using an angle grinder equipped with an
on/off switch located at the base of the long handle of the grinder. In
addition, the device was equipped with an auxiliary handle located forward of
the long handle on the right side of the grinder. Claimant stated that even
though the equipment was designed to grind, he was told by Citi Buildings that
he was to use it in sawing out the brick. He stated that the grinder did not
have a guard affixed to it as required by 12 NYCRR Rule 23-1.12(c). His
brother, however, contradicted him, stating that he observed Claimant as he was
using the grinder on that day and it was equipped with a guard. Moreover,
Harbhajan Singh stated that on the day of the occurrence he and his
brother were engaged in pointing the bricks not cutting them (Transcript, pp.
115-116). I would note that according to the testimony, even with the guard in
place, up to one-half of the blade would still be exposed.
Claimant stated that while using the device that day it became lodged in the
brick and he could not free it. He explained that he turned it off and
attempted to free it but without success. He then turned the grinder back on,
put his right hand on the auxiliary handle on the side while grasping the handle
to the rear of the grinder, shook it and apparently pulled on it, attempting to
free it from the brick. The grinder, however, jumped out of the wall, turned in
what was described as a counterclockwise manner, causing Claimant’s right
hand to fall from the auxiliary handle which resulted in his hand coming in
contact with the blade that cut through the glove he was wearing and into his
Harlain Fair, Claimant’s expert who had been employed by the Defendant in
the past on other matters, stated that in his expert opinion the portable power
tool being used by the Claimant on the day of the accident did not comply with
Rule 23-1.12 (c) (1) of the New York State Industrial Code. It was his opinion
that this article was applicable to the power tool provided and used by Claimant
at the time of the accident since it was not equipped with a guard. He concluded
that the injury would not have occurred if there had been a back guard because
the blade would not have been exposed to a degree that would have struck
Claimant’s hand. Mr. Fair went on to opine that Claimant was not
engaged in the activity of pointing the brick
but rather was involved in cutting out
the bricks so that they could be replaced. Consequently, Mr. Fair believed that
Claimant had been given an improper tool, as the grinder by definition is not
designed to cut out bricks. There are saws specifically designed for that
purpose and they are equipped with safety guards. He went on to state that a
grinder being used as a saw to remove bricks should be equipped with a front and
a rear guard to comply with the Industrial Code.
Under cross-examination, Mr. Fair stated that an angle grinder, when used for
pointing, is fitted with a flat masonry blade that has no teeth. He conceded
that he was not aware of the make or model of the grinder that Claimant was
using, and that even if Claimant had one hand on the power trigger, with the
other hand on the auxiliary handle, and even if it had been equipped with a
guard, one-half of the blade would still be exposed. He also conceded that an
angle grinder was not a saw and not explicitly covered by the section of the
Industrial Code he relied upon, since that section was specific to saws which
are, or should be, equipped with moveable guards. Angle grinders are not
designed to have moveable guards. In fact, while he testified that there were
OSHA regulations which covered grinders specifically, it was apparent that he
was of the belief that the cited section of the Industrial Code was
applicable in this instance.
Labor Law § 241 (6) imposes a non-delegable duty upon the owner and
contractors to provide reasonable and adequate protection and safety to
construction workers (Comes v New York State Elec. & Gas Corp., 82
NY2d 876). Consequently an owner or contractor may be required to respond in
damages for injuries sustained due to another party’s negligence in
failing to provide for the reasonable and adequate protection of the persons
employed. Thus, once it is established that an owner or contractor at a
construction site caused or negligently allowed a condition to exist that is
violative of a concrete specification of the Industrial Code then the owner or
contractor will be vicariously liable (Rizzuto v L.A. Wenger Contr. Co.,
91 NY2d 343). It is not an absolute liability statute and either the owner or
contractor may raise a valid defense of contributory or comparative negligence
to avoid the imposition of vicarious liability (Rizzuto v L.A. Wenger Contr.
Co., 91 NY2d 343, supra).
In my opinion, 12 NYCRR 23-1.12 (c)(1) mandates a distinct standard of
conduct and is not a general reiteration of common law principles and therefore,
if applicable, can serve as a predicate for liability under Labor Law
§241(6) in this case. In pertinent part that provision provides as
(c) Power-driven saws. (1) Every portable, power-driven, hand-operated
saw which is not provided with a saw table, except chain saws and circular brush
saws, shall be equipped with a fixed guard above the base plate which will
completely protect the operator from contact with the saw blade when the saw is
operating and with a movable self-adjusting guard below the base plate which
will completely cover the saw blade to the depth of the teeth when such saw
blade is removed from the cut.
However, the device being used by Claimant was not a saw; it was a grinder. No
amount of semantical legerdemain can wishfully transform a grinder and make it a
saw. The industrial code is specific, and it addresses specific tools,
power-driven saws, and not grinders. Moreover, there is a material diversion in
the testimony of Claimant and his brother as to what they had been assigned to
do and what they were in fact doing at the time of the accident. Claimant, it
will be recalled, stated that he was cutting bricks out of the corner to which
he had been directed. His brother was in an opposite corner, and he stated
that they were both engaged in pointing the brick, thus contradicting Claimant.
Both men were using angle grinders. Neither of them was using a saw and both
reiterated that several times during their testimony. Claimant would have me
conclude that a power grinder is a power saw. There is no credible or expert
opinion that permits me to do so and he does not point me to any case law that
supports this theory. The specificity of the section relied upon by Claimant
and Mr. Fair, his expert, relates solely to saws and not to grinders, and as
such is not applicable to this case (Transcript, pp. 52-53). The cause of
action sounding in violation of Labor Law §241(6) may not stand.
The remaining cause of action sounds in Labor Law §200, a codification of
the common law duty of an owner or contractor to use reasonable care to provide
its workers with a safe place to work (Allen v Cloutier Constr. Corp., 44
NY2d 290, rearg denied 45 NY2d 776). An owner is not liable if the
injury is caused by a defect or danger in the contractor’s manner of
performing the work and when the owner does not exercise supervisory control
over the injury-producing activity (Comes v New York State Elec. & Gas
Corp., 82 NY2d 876, supra). General supervisory authority to oversee
the progress of the work or to inspect the work product is insufficient to
impose liability under this section of the Labor Law or under common law
principles of negligence (Alexandre v City of New York, 300 AD2d
The injury-producing activity in this case is the manner in which Citi
Buildings pointed or removed bricks and the equipment that it supplied to its
employees to perform the task. The record before me lacks any proof that a
representative of the Defendant was present on the day of the accident, and
there is no evidence that the Defendant supervised or controlled the method or
manner in which the work was performed or supplied or maintained any of the
equipment that was used on this job. Accordingly, I find that Claimant’s
cause of action under Labor Law §200, sounding is common law negligence,
must be dismissed.
This is not to say that Claimant did not sustain a terrible injury to his hand,
and the amputation of fingers or parts thereof. There is good reason to suspect
that the interlocking ownership/relationship amply described above was concocted
to evade contractual wage and safety regulations, as well as taxes and benefits,
and Claimant’s employer may well have provided him with inappropriate
tools to perform the tasks he had been employed to do. But in the end, neither
cause of action implicates culpable conduct attributable to the Defendant, and
accordingly I am compelled to dismiss the claim.
All motions not heretofore ruled upon, are now denied. The Clerk of this Court
is directed to enter judgment dismissing the claim.
LET JUDGMENT BE ENTERED ACCORDINGLY.