New York State Court of Claims

New York State Court of Claims

CATARINO v. STATE OF NEW YORK, #2007-014-506, Claim No. 107465, Motion Nos. M-72200, CM-72316


Appellate Result:
Affirmed, 2008 NY Slip Op 08186 (First Department)

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):
Claimant’s attorney:
Edelman & EdelmanBy: David M. Schuller
Defendant’s attorney:
Ellenberg & RigbyBy: John R. Wiess
Third-party defendant’s attorney:

Signature date:
May 3, 2007
New York

Official citation:

Appellate results:
Affirmed, 2008 NY Slip Op 08186 (First Department)
See also (multicaptioned case)


The following papers were read on defendant’s motion for summary judgment and claimants’ cross motion for partial summary judgment: Notice of Motion, Affidavit in Support and Exhibits annexed; Notice of Cross Motion, Affirmation in Opposition, and in Support of Cross Motion, Affidavits and Exhibits annexed; Reply Affidavit in Further Support and in Opposition to Cross Motion and Exhibits annexed; Reply Affirmation. By stipulation, the parties agreed that the sole remaining cause of action is one under Labor Law §241(6), premised on a violation of §23-8.1(f)(5) of the Industrial Code. The defendant has moved for summary judgment on the ground that the foregoing regulation does not apply to the facts of this case. Claimants oppose the motion and cross move for partial summary judgment on the issue of liability.

The facts are not in dispute, and are set forth in defendant’s papers (Affidavit in Support, ¶ 2) as follows: “Claimant Edmundo Catarino alleges that he was injured on July 10, 2001, on a job site located near Canal Street and West Street on the lower west side of Manhattan, while he was working for Perini Corporation as a laborer. The claimant and another laborer, Jose Mayan, had been assigned to help unload three cement/concrete boxes from a flatbed truck. The cement /concrete boxes were being taken off of the flatbed truck by a crane and were being placed on the ground nearby. After the crane had removed the third and final cement/concrete box from the flatbed truck and had placed that cement/concrete box on the ground, the claimant climbed down off of the flatbed truck, went over to the place where that third cement/concrete box was resting on the ground, climbed up on top of that cement/concrete box, and began disengaging the four cables that were hooked to that cement/concrete box. The claimant successfully unhooked three of the four cables from the cement/concrete box. While the claimant was using his left hand to unhook the last of the four cables from the cement/concrete box, he was holding onto the crane cable with his right hand. At that time, the crane cable started moving causing the claimant’s right hand to be pulled into the cable box. The claimant suffered a crush injury to his right thumb and hand.”

Labor Law §241(6) imposes a non-delegable duty on property owners and contractors to comply with the provisions of the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494), making them vicariously liable for the negligence of others whom they did not supervise (see Toefer v Long Island R.R., 4 NY3d 399, 409). In order to succeed, a claimant must allege that the defendant violated a rule or regulation which sets forth a specific standard of conduct, as opposed to a general reiteration of common law principles (see Ross, 81 NY2d at 504-505).

While there is no reported case concerning §23-8.1(f)(5), the subsequent and somewhat similar Industrial Code provision, §23-8.1(f)(6)[1], has been held to be sufficiently specific to form the basis of a Section 241(6) cause of action (see Locicero v Princeton Restoration, Inc., 25 AD3d 664 [“§ 23-8.1(f)(6) is an unequivocal and specific command . . . ”]). Defendant does not dispute this reasoning.

Industrial Code §23-8.1(f)(5) provides, in its entirety: “Mobile cranes, tower cranes and derricks shall not hoist, lower, swing or travel while any person is located on the load or hook.” It is the defendant’s contention that §23-8.1(f)(5) is inapplicable here because it applies only to the actual movement of the load, and that according to claimant Edmundo Catarino’s deposition testimony, the crane had already placed the load on the ground. But he also testified that: “After this box was unloaded and being on the ground, I had to climb up to the box to remove the cables from the hook. While I was doing that, the operator starts reeling the cable, without being told to, and my hand was pulled in the cable block and was crashed” (deposition transcript, portions attached to claimants’ cross motion as Exhibit A, page 27).

In their cross motion, claimants rely on the expert opinion of a licensed professional engineer (Claimants’ Affirmation in Opposition, and in Support of Cross Motion). He states that the only explanation as to why Mr. Catarino’s hand was pulled into the hook block, is that the crane operator engaged the lever to hoist or lower the hook block, while claimant was on the load, with one hand holding the cable.

In its opposition to claimants’ cross motion, defendant contends that even if the Court were to find that §23-8.1(f)(5) applies to these circumstances, a violation of the Industrial Code alone does not make a prima facie case. It is the defendant’s position that the violation does not give rise to absolute liability, but requires a determination as to whether the safety measures employed were reasonable under the circumstances.

The Court finds that §23-8.1(f)(5) applies to the facts of the case. Merely that the load had once been lifted and lowered does not preclude further activation and movement of the hoist device. It is uncontroverted that the attached crane cable was set into motion while claimant was located on the load, which was hooked to the crane. The rule was violated.

Claimants have made out a prima facie case under Labor Law §241(6). Under these circumstances, there is no issue of whether the violation of the regulation was the proximate cause of claimant’s injury, and the issue of claimant’s culpable conduct was not adequately raised by defendant (see Stringari v Peerless Importers, 304 AD2d 413; Gotlin v City of New York, 11 Misc 3d 1071(A); cf. Wells v British American Development Corp., 2 AD3d 1141). Defendant has failed to raise a triable issue of fact to overcome claimants’ prima facie showing of entitlement to judgment as a matter of law (see Hayden v 845 UN Limited Partnership, 304 AD2d 499).

In accordance with the foregoing, defendant’s motion for summary judgment is denied, and claimants’ cross motion for partial summary judgment is granted

May 3, 2007
New York, New York

Judge of the Court of Claims

[1].Section 23-8.1 (f) (6) provides: “ Mobile cranes, tower cranes and derricks shall not hoist or carry any load over and above any person except as otherwise provided in this Part (rule).”