New York State Court of Claims

New York State Court of Claims

FURLOW v. THE STATE OF NEW YORK, #2007-016-023, Claim No. 105095, Motion No. M-72792


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):

Alan C. Marin
Claimant’s attorney:
Friedman & Simon, L.L.P.By: Roger L. Simon, Esq.
Defendant’s attorney:
Ahmuty, Demers & McManus, Esqs.By: Jennifer A. Casey, Esq.
Third-party defendant’s attorney:

Signature date:
June 19, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant James Furlow moves for an order: (1) granting him permission to amend his bill of particulars to claim a violation of 12 NYCRR §23-1.7(e); and (2) granting him partial summary judgment on the issue of liability pursuant to Labor Law §241.6. In his underlying claim, Mr. Furlow alleges that on September 19, 2001, he tripped and fell over concrete debris at a construction site where he was working. The State of New York does not object to that branch of claimant’s motion which seeks permission to amend his bill of particulars to allege a violation of §23-1.7(e). Defendant does, however, oppose the motion to the extent it seeks partial summary judgment on the issue of liability.

Labor Law §241.6 creates a non-delegable duty on the part of the owner of a construction site to provide “reasonable and adequate protection and safety” for workers. Allen v Cloutier Const. Corp., 44 NY2d 290, 405 NYS2d 630 (1978). To prevail on a cause of action under §241.6, claimant must show the violation of a specific safety standard established by regulation of the State Commissioner of Labor. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993).

12 NYCRR §23-1.7(e) provides, in relevant part that:
(e) Tripping and other hazards. (1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

Section 23-1.7(e) is a standard with the requisite specificity to sustain a cause of action under Labor Law §241.6. See Smith v McClier Corporation, 22 AD3d 369, 802 NYS2d 441 (1st Dept 2005).
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On September 19, 2001, claimant was working as a laborer for United States Rebar, Inc., a subcontractor of Slattery Skanska, Inc., which had a contract with the State to reconstruct portions of the Brooklyn-Queens Expressway. Furlow’s job that morning entailed carrying rebar from where it was stored at the jobsite to another area where it was to be shaped for use. Claimant testified at his deposition that as he was carrying the rebar with another worker, he tripped and fell over a mound of hardened concrete. No other version of how the accident occurred is contained in any of the parties’ submissions.[1] However, defendant questions whether the accident occurred as claimant contends, arguing that Furlow’s credibility has been placed at issue because of a prior conviction - - petit larceny for fraud.[2] No applicable precedent has been advanced, but in general, summary judgment is inappropriate where there are issues of credibility. See, e.g., Ferrante v American Lung Ass’n, 90 NY2d 623, 665 NYS2d 25 (1997).

In any event, other issues prevent the granting of summary judgment here. First, there are questions as to whether the area in which claimant fell is subject to §23-1.7(e), which covers “passageways” and “working areas.”

Claimant variously described his accident as having occurred “in the work area[3],” on “the pathway for the walkway” and on “the walkway.”[4] Claimant also testified that he had made numerous trips carrying rebar before the trip during which he fell, did not take the same path each time, and said of the accident site, “[s]ome parts were dirt, some parts [were] concrete. It was unfinished, but it was smooth . . . some parts had some hills . . . it was just rough terrain.”
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Section 23-1.7(e)(1) does not apply here; this open area is not a passageway. Smith v Hines GS Properties, Inc., 29 AD2d 433, 815 NYS2d 82 (1st Dept 2006).

As to §23-1.7(e)(2), that claimant characterizes the site as a working area does not supply the facts needed to determine whether this provision obtains. Assuming that a working area does not have to be within a structure (see, e.g., Laboda v VJV Development Corp., 296 AD2d 441, 745 NYS2d 67 (2d Dept 2002)) - - otherwise, no outdoor work would be covered - - there nonetheless remain issues of fact as to whether the place where Furlow fell is covered by §23-1.7(e)(2). See Smith, supra.

Moreover, it should be noted that defendant has raised issues as to claimant’s own comparative negligence, i.e., that he had seen other mounds of hardened concrete the morning before his accident and had made numerous trips prior to falling. In that regard, see, e.g., Rizzuto v L.A. Wenger Contracting Co., Inc., 92 NY2d 343, 670 NYS2d 816 (1998).

Accordingly, having reviewed the submissions[5], IT IS ORDERED that motion no. M-72792 be granted to the extent that claimant shall be permitted to amend his bill of particulars to claim a violation of 12 NYCRR §23-1.7(e)(2) and shall otherwise be denied. IT IS FURTHER ORDERED that said amended bill of particulars shall be served and filed within thirty (30) days of the filing of this Decision and Order.

June 19, 2007
New York, New York

Judge of the Court of Claims

  1. [1]Contrary to defendant’s assertion, labor foreman James Callahan did not state as his deposition that he observed no concrete in the area of claimant’s accident following same. Rather, he stated that he “didn’t notice it at the time. I was more concerned that he was okay.” See p. 24 of the transcript of the June 29, 2004 deposition of James Callahan, annexed to defendant’s opposition papers as exhibit D.
  2. [2]See pp. 50-51 of the transcript of the April 3, 2006 deposition of James Furlow (the “2006 Furlow Deposition”), annexed to defendant’s opposition papers as exhibit B.
  3. [3]John Haran, a Department of Transportation supervisor on the job testified that, “I am thinking with the rebars, these are big giant work areas that they store the rebar and erect the same. The general area is one big staging area.” See p. 30 of the transcript of the May 30, 2006 deposition of Mr. Haran, annexed to defendant’s opposition papers as exhibit C.
  1. [4]See pp. 12, 25 and 27 of the transcript of the November 3, 2003 deposition of James Furlow, annexed to defendant’s opposition papers as exhibit A.
  2. [5]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through G; defendant’s affirmation in opposition with exhibits A through D; and claimant’s reply affirmation.