New York State Court of Claims

New York State Court of Claims

ELIAS v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2007-030-538, Claim No. 110788, Motion Nos. M-72753, CM-73074


Synopsis


Cross-motions for summary judgment denied. Labor Law §241(6) cause of action asserted, relies on regulation concerning safeguarding saw. Triable issues as to whether the implement here is covered by this specific regulation, as experts opine differently. Triable issues of fact as to the actual happening of the accident - given claimant’s presentation of three different versions of same - whether the asserted failure to safeguard this equipment was a proximate cause of claimant’s accident, and the relative responsibilities of each actor in terms of comparative fault.

Case Information

UID:
2007-030-538
Claimant(s):
FERNANDO ELIAS and MARIA ELISA ELIAS
Claimant short name:
ELIAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110788
Motion number(s):
M-72753
Cross-motion number(s):
CM-73074
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
SHAFRAN & MOSLEY, P.C.BY: HOWARD E. SHAFRAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
FABIANI, COHEN & HALL, LLP
BY: MELISSA R. CALLENDER-LEE, ESQ.
Third-party defendant’s attorney:

Signature date:
June 6, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on the parties’ cross-motions for


summary judgment:

1-3 Notice of Motion for Summary Judgment; Affirmation in Support of Claimants’ Motion for Summary Judgment by Howard E. Shafran, Counsel for Claimants and attached exhibits; Claimants’ Memorandum of Law in Support of Motion for Summary Judgment

  1. Affirmation in Opposition to Claimants’ Summary Judgment Motion by Melissa R. Callender-Lee, Counsel for Defendants, and attached exhibits
5,6 Notice of Cross-Motion; Affirmation in Support by Melissa R. Callender-Lee, Counsel for Defendants, and attached exhibits

  1. Reply Affirmation in Support of Motion for Summary Judgment & in Opposition to Cross-Motion by Defendant for Summary Judgment by Howard E. Shafran, Counsel for Claimants, and attached exhibits
  1. Reply Affirmation by Melissa R. Callender-Lee, Counsel for Defendants and attached exhibits
  1. Filed papers: Claim
This claim is brought pursuant to Labor Law §241(6), asserting an underlying violation of Industrial Code Rule 23, specifically 12 NYCRR §23-1.12, requiring that power tools - including power driven saws - be equipped with safety guards. Claimant[1] alleges in his claim that he was working as a laborer for his employer, Columbus Construction Company, performing reconstruction work at a job site located on Interstate 95 North, at or near the Bruckner Expressway in Bronx County, New York, on October 3, 2003. At approximately 12:10 p.m. on that day, according to the claim, another worker working with a Stihl Cutquick demolition saw removed it from an ongoing cut in such a manner that the saw blade was exposed and came in contact while still moving with Mr. Elias’ left leg, causing a 12-inch laceration between the knee and the calf, among other injuries. Defendants are sued as owners, responsible under the Labor Law. In their Answer, in addition to general denials, Defendants raise four (4) affirmative defenses. [2]

Claimant moves for summary judgment and the Defendant has made a cross-motion for such relief as well. It appears uncontroverted that Mr. Elias was engaged in a covered activity - reconstruction of the Bruckner Expressway - was a covered person under Labor Law §241(6), and that one Defendant, State of New York - as an owner - had a non-delegable duty to comply with the Labor Law and the Industrial Code Provision. The Defendant New York State Thruway Authority, however, concededly has no applicable role herein and any cause of action asserted against it is hereby dismissed in any event. [See Affirmation in Support, by Melissa R. Callender-Lee, Exhibit M, Affidavit of George Gaborow in Support of Defendants’ Cross-Motion for Summary Judgment].

Defendant notes that different versions of the mechanics of the accident have been advanced. Namely, in his bill of particulars, Claimant indicated that another worker operating the machine handed it to him in such a way that it came into contact with his leg and injured him. [Affirmation in Support of Claimants’ Motion, by Howard E. Shafran, Exhibit E; Affirmation in Support of Defendants’ Cross-Motion, by Melissa R. Callender-Lee, Exhibit D]. During deposition testimony, Mr. Elias testified that he was holding the saw at the time of the accident, looking for a place to set the machine down when it flipped over and cut his leg. [Affirmation in Support of Claimants’ Motion, by Howard E. Shafran, Exhibit W; Affirmation in Support of Defendants’ Cross-Motion, by Melissa R. Callender-Lee, Exhibits G and H]. Finally, Defendant avers that during statements given to medical personnel at Jacobi Hospital, Claimant stated that the machine slipped from his hand, but does not indicate where in the voluminous submissions made with this motion such a statement appears.

Putting these different descriptions of the accident aside for the moment, the primary argument made by Defendant in its cross-motion is that the machine itself - a Stihl TS 400 cut-off machine - is not a “saw” in the view of Defendant’s expert, thus it is not a piece of equipment encompassed within the regulatory safeguards of Industrial Code Rule 23-1.12 (c)(1). [See Affirmation in Support of Defendants’ Cross-Motion, by Melissa R. Callender-Lee, Exhibit N, Affidavit of Paul J. Glasgow]. This is because although the machine was being utilized as a saw to cut wood because a wood cutting saw blade had been attached to it, that was not its original design. Its actual purpose was as a grinder for grinding asphalt, concrete, pavement or steel, with any cutting, opines Mr. Glasgow, as incidental to the grinding action. Adding such a saw blade to the machine did not render it a saw subject to the safeguards noted, it is argued, such that violation of the Industrial Code rule would be a proximate cause of Claimant’s injuries.

Claimant argues Romeo’s view, albeit not as poetically: a saw by any other name is still a saw if that is the use it is given at the construction site. Having been provided with this machine to cut plywood to create forms for the pouring of concrete on a highway expansion joint, such a machine - or saw - was required to have a baseplate or platform shoe as well as a retractable guard, none of which were present. Claimant was not provided with any manual for the operation of the tool, that might have alerted him to the fact that the machine should not have been used to cut wood, that it was unguarded for cutting wood - provided he had been able to read such a manual since it appears he does not read English. As noted, the tool’s intended use was for cutting asphalt, concrete, pavement and steel and is specifically not for use on wood. It had been modified by unknown persons such that the water cooling system had been removed, as well as the abrasive cutting wheel associated with the use the tool was actually designed for, and a wood cutting blade had been attached. There is also evidence that the machine was not idling properly.

Claimants’ engineering expert offered an opinion based upon all three versions of events given by Mr. Elias, all to the effect that the Industrial Code provision is violated regardless of how the blade came into contact with claimant’s leg, because it was an improper machine for cutting wood, had no proper guard or base plate for operator safety, and in short was the wrong tool for the job yet was offered without a choice for use by the worker. [Affirmation in Support of Claimants’ Motion, by Howard E. Shafran, Exhibit G; Reply Affirmation in Support of [Claimants’] Motion for Summary Judgment & in Opposition to Cross-Motion by Defendant for Summary Judgment, Exhibit A, Affidavit of Herbert Heller, Jr. P.E.].
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . .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.
Assuming a 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 York, 49 NY2d 557 (1980). Nonetheless, because cross-motions for summary judgment have been presented[3], 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 trial.

In terms of the substantive law at issue, Labor Law §241(6)[4] requires owners and contractors to provide workers reasonable and adequate protection and safety, based on compliance with specific safety rules and regulations. Thus liability under the statute is imposed when an owner or contractor has violated a rule or regulation of the Commissioner of the Department of Labor [see generally 12 NYCRR §23-1.1 et seq.] which sets forth a specific standard of conduct and that violation is the proximate cause of the accident. Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 501-503 (1993); Ares v State of New York, 80 NY2d 959, 960 (1992). The court must decide whether a regulation applies to the equipment and activity involved and, if so, whether it was violated. Thompson v Ludovico, 246 AD2d 642, 643-644 (2d Dept 1998).[5] The duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site. Ross v Curtis-Palmer Hydro-Electric Company, supra at 504-505; Haider v Davis, 35 AD3d 363, 364 (2d Dept 2006). A violation is some evidence of negligence, to be considered along with other relevant evidence. Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349-350 (1998); see Marino v Skil Corporation, 259 AD2d 256 (1st Dept 1999). Comparative fault[6], therefore, is a part of the picture where the imposition of liability pursuant to violation of an Industrial Code regulation is sought. [See Rizzuto v Wenger Contr. Co., supra; Haider v Davis, supra; Marino v Skil Corporation, supra.].

12 NYCRR §23-1.12 (“Guarding of Power-Driven Machinery”), specifically paragraph (c)(1), provides:
“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.”



This regulation has been found to be specific enough to sustain a cause of action alleging violation of Labor Law §241(6). Haider v Davis, supra; Marino v Skil Corporation, supra.

Is the implement at issue here a saw covered by this specific regulation? The experts opine differently, and a triable issue of fact arises. Additionally, there are triable issues of fact as to the actual happening of the accident - given claimant’s presentation of three different versions of same - whether the asserted failure to safeguard this equipment was a proximate cause of claimant’s accident, and the relative responsibilities of each actor in terms of comparative fault.

Accordingly, and after careful consideration, Claimants’ motion for summary judgment [M-72753] is in all respects denied, and Defendants’ cross-motion for summary judgment [CM-73074] is granted in part, with respect to dismissal of any cause of action against the New York State Thruway Authority, but otherwise denied.

June 6, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Unless the context suggests otherwise, references to Claimant throughout this decision refer to Fernando Elias, as the loss of services claim of Maria Elias is derivative only.
[2].Defendants are instructed to immediately file the Answer served in the Office of the Chief Clerk of the Court of Claims as required by 22 NYCRR § 206.5(c).
[3].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); c.f. Brill v City of New York, 2 NY3d 648 (2004). Thus, the Court is not overly concerned with the mechanics of which affidavit is properly verified or not or what affirmation it is attached to - a matter of some concern to defendants in successive submissions - when there is no surprise or prejudice involved.

[4]. “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:***
(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith . . .”
[5]. “In any event, the sections of the Industrial Code cited in the plaintiff's proposed amended bill of particulars did not support his claim under Labor Law § 241 (6) because those sections were either merely general safety standards (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; Biszick v Ninnie Constr. Corp., 209 AD2d 661; Gordineer v County of Orange, 205 AD2d 584; 12 NYCRR 23-8.1 [a]; 23-8.2 [f] [2] [i]; 23- 9.2 [a]) or not applicable to the case at bar (see, 12 NYCRR 23-8.1 [b] [1]- [5]; [d] [1]-[2]; [f]; 23-8.2 [c] [2]; [f] [2] [ii], [iii]; 23-9.2 [b]). Accordingly, the court also correctly dismissed the Labor Law § 241 (6) cause of action.”
[6]. Claimants’ reliance on Supensky v State of New York, 192 Misc 2d 233 (Ct Cl 2002), affd 2 AD3d 1436 (4th Dept 2003) for the proposition that comparative fault is not an issue in a Labor Law §241(6) claim is misplaced. The court merely found after a full trial that the worker had not been responsible for his injuries, not that the issue of comparative fault would not be considered.