LIMA v. THE STATE OF NEW YORK, #2007-036-200, Claim No. 109963, Motion Nos.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
MELVIN L. SCHWEITZER
DAVIDSON & COHEN, P.C.By: Bruce E. Cohen, Esq.
ANDREW M. CUOMO, ATTORNEY
LESTER SCHWAB KATZ & DWYER
By: John T. Holden, Esq.
January 31, 2007
See also (multicaptioned
This is defendant’s motion for summary judgment to dismiss claims alleging
violations of New York Labor Law §§ 200, 240 and 241 (6), and
claimant’s cross-motion for summary judgment to hold the State liable
under §§ 240(1) and 241(6) as a matter of
The claims accrued on September 30, 2004
when one end of a concrete barrier being hoisted by a hydraulic crane tipped or
fell onto claimant’s hand while he was working for the general contractor
on a project on the Long Island Expressway near Old Westbury, New York. The
respective deposition testimonies of the claimant, the signal man, the crane
operator and claimant’s foreman establish the circumstances: At the time
of the accident, the four-man crew had been working together on the project for
two months. Their job was to erect a permanent highway divider by setting
concrete barriers end-to-end along the highway median. Each barrier section
weighed 48,000 pounds, measured twenty feet long and varied from four to five
feet in height. The crane operator would lift a barrier section from a flatbed
truck and lower it onto the road so that it was placed on pre-poured concrete
pads located at each end of the barrier section. Each section was hoisted in a
two-way sling attached to the crane with a ring and two cables. A set of
“monkey paws” locked the barrier section into the sling.
Claimant’s responsibility was to determine whether a section of barrier
was even with the one before it after it was lowered and set down. If it was
not, claimant would let the signal man know the barrier needed to be lifted,
then the signal man would communicate by hand signals with the crane operator
either to raise or lower the barrier as needed, and claimant then would place
rectangular plastic shims under the barrier wherever they were needed to level
the barrier before it was lowered again.
The details of the accident are unclear. The crane operator testified that he
lifted a barrier from the truck, swung it into position and began to lower it
onto the ground. He recalled the gravel under the center of the barrier as
being higher than the concrete pads at the ends, and that the barrier rocked.
He assumed claimant was on his knees looking at the barrier, because the signal
man indicated to him that the barrier should be lifted. The crane operator
proceeded to do so and the barrier “pivoted” as he picked it up.
The signal man yelled to the operator to lower the barrier, he slackened the
cables to do so and then he saw claimant sitting and holding his hand.
The crane operator also testified that he had lifted the barrier only three or
four inches before the accident occurred. However, claimant testified that the
barrier was lifted 24 inches; and his foreman testified it was raised less than
one foot before it came down on claimant’s
In any event, the crane operator said
the crane was equipped to hold 50,000 pounds in weight, the sling did not shift
when the barrier came down on claimant’s hand, and that the “monkey
paws” which locked the barrier into the sling did not release the barrier.
On a motion for summary judgment, the moving party must “establish his
cause of action or defense ‘sufficiently to warrant the court as a matter
of law in directing judgment’ in his favor . . . and
he must do so by tender of evidentiary proof in admissible form.”
(Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ,
quoting CPLR 3212 [b].) The moving party must make a prima facie
showing that it is entitled to judgment as a matter of law, and the opposing
party must present evidentiary proof in admissible form to defeat summary
judgment by showing disputed facts which require a trial. (Winegrad v New
York University Medical Center, 64 NY2d 851 ; Zuckerman v City of
New York, 49 NY2d 557 .) Where, as here, both a motion and a
cross-motion have been made, the court is not constrained to view the evidence
in the light most favorable to a non-moving party but may search the entire
record to determine if material issues of fact exist. (See Bray v State of
New York, UID No. 2006-030-506 [Ct Cl, February 6, 2006,
Labor Law § 240 (1), entitled “Scaffolding and other devices for use
of employees,” provides:
All contractors and owners and their agents, . . . who contract for but do not
direct or control the work, in the erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure shall furnish or
erect, or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,
irons, ropes, and other devices which shall be so constructed, placed and
operated as to give proper protection to a person so employed.
To effectuate the legislative intent of this statute, which places
responsibility for worker safety with the owner and general contractor, a
violation of the provision is deemed conclusive evidence of negligence.
(Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-21 .)
For liability to attach, the work must pertain to a “building or
structure,” and the circumstances must involve an elevation-related risk,
as defined by the Court of Appeals in Rocovich v Consolidated Edison Co.
(78 NY2d 509, 514 ), to wit, “those [risks] related to the
effects of gravity where protective devices are called for either because of a
difference between the elevation level of the required work and a lower level or
a difference between the elevation level where the worker is positioned and the
higher level of the materials or load being hoisted or secured.” A
claimant also must show he was injured by an object which fell while being
hoisted or secured because of the absence or failure of a safety device of the
kind set forth in the statute, i.e., a hoist, sling, or stay.
(Narducci v Manhasset Bay Associates, 96 NY2d 259, 268 .)
Defendant argues the claims under Labor Law § 240 (1) should be dismissed
because claimant was constructing a highway, not working on a
“building” or “structure,” and because no
evaluation-related risk was involved.
With regard to whether the work here involved a structure, unlike the projects
in the cases on which defendant relies, e.g. Spears v State of New York,
266 AD2d 898 [4th Dept 1999] (highway renovation), this project consisted of
erecting something on the highway, i.e. a concrete divider. Each
barrier section is a “structure” under Labor Law § 240 (1), as
defined by the Court of Appeals, that is “any production or piece of work
artificially built up or composed of parts joined together in some definite
manner” (Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 ;
see also Smith v Shell Oil Co., 85 NY2d l000 ) (free-standing sign);
Gordon v Eastern Ry. Supply, 82 NY2d 555  (railroad car);
Lewis-Moors v Contel of N.Y., supra (telephone pole with attached
hardware); Faldetta v State of New York, 7 Misc 3d 1018 (A) [Ct Cl
2005]) (fairground tent ); Covey v Iroquois Gas Transmission System, 218
AD2d 197 [3d Dept 1996] (pipeline)).
Defendant also argues it cannot be liable because claimant’s injuries
were not caused by an elevation-related risk, see Rocovich v
Consolidated Edison Co.
(78 NY2d 509, 514 ), but rather
by claimant’s own conduct in placing his hand under the barrier. The
court disagrees. The elevation-related risk here lies in the difference
between claimant’s position on the ground and the lifting and lowering of
20-foot concrete barriers – each weighing 48,000 pounds (see Salinas v
Barney Skanska Construction Co.
, 2 AD3d 619 [2d Dept 2003]
(elevation-related risk, regardless of height, where air conditioning duct
weighing several hundred pounds fell)). While it appears the barrier was only
partially raised before landing on claimant’s hand, the circumstances here
warrant the court’s consideration whether there was a failure of the swing
used to hoist and/or secure the barriers. (See Narducci v Manhasset Bay
, 96 NY2d 259, 268 .) The motion and cross-motion for
summary judgment under Labor Law § 240 (1) are
(See Watson v Hudson Valley Farms,
276 AD2d 1004 [3d Dept 2000] (denying summary judgment based on issue
of fact regarding alleged failure of safety device under Labor Law § 240
As to the claims asserted under Labor Law § 241 (6) for violations of
Industrial Code §§ (f) (2) (i) and (f) (7), defendant seeks their
dismissal because claimant failed to identify these rules when requested to
identify the alleged basis for defendant’s liability in his verified bill
Although claimant should have
moved for an order permitting him to supplement his pleading specifically to
include § §23-8.1 (f) (2) (i) and (f) (7), defendant has not shown how
it would be prejudiced by allowing claimant to rely on these rules at this
Strict liability under Labor Law
§241(6) attaches where an owner or contractor has violated a rule or
regulation of the Commissioner of the Department of Labor 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
(1993). (See generally
12 NYCRR §23-1.1 et seq.) The court must
decide whether a regulation applies to the equipment and activity involved and,
if so, whether it was violated. (See Thompson v Ludovico
, 246 AD2d 642
[2nd Dept 1998].)
With regard to Industrial Code § 23-8.1 (f) (2) (i), it provides as
(2) During the hoisting operation the following conditions
(i) There shall be no sudden acceleration or deceleration
of the moving load unless required by emergency conditions.
The regulation is applicable here because the barrier was a “moving
load” which was raised and lowered before it struck claimant’s hand,
and the accident could have resulted from the sudden acceleration or
deceleration of the barrier. Issues of fact, however, preclude a determination
at this juncture as to whether this rule was violated. When
questioned as to how long the barrier stayed hoisted before coming into contact
with his hand, claimant responded, “Very fast I went to pick up the shims
and it went on my hand.” The crane operator testified he could not
identify the speed at which he lifted the barrier when the accident occurred
because the crane has a “capacity multiplier,” the speed setting is
a variable, and “the more you pull the handle, the faster it lifts.”
Claimant’s foreman testified he did not see claimant’s hand under
the barrier as it was coming down, “but then I saw that time the barrier
is on the ground he got his hand in there,” which may suggest the barrier
could have descended quickly. Summary judgment therefore is denied on the
motion and cross-motion regarding the claim asserted under § 23-8.1 (f) (2)
The other regulation claimant relies upon, Industrial Code § 23-8.1 (f)
The operator of any mobile crane, tower crane or derrick
shall not leave his position at the controls while any load is suspended
nor shall any person be permitted to work or pass under a stationary
The purpose of the provision is to protect workers from being injured by a
suspended load that may fall while they are passing or working beneath it.
(Schutt v State of New York, UID No. 2002-019-568 [Ct Cl, Sept. l9,
2002, Lebous, J.].) Defendant argues the facts in this case are irrelevant to
§ 23-8.l (f) (7) because claimant was neither working nor passing under the
load, i.e., the barrier, when the accident occurred, nor was the load
“stationary.” The court agrees.
As noted previously, claimant testified the accident occurred after the barrier
had been raised twenty-four inches, whereas the crane operator testified he
raised the barrier three to four inches and claimant’s foreman testified
the barrier was raised “probably” less than a foot. Despite the
inconsistencies, it is apparent the load was moving and that there was no room
for anyone to work or pass under it as contemplated by the rule. Summary
judgment dismissing the cause of action under Labor Law § 241 (6) based on
Industrial Code § 23-8.1 (f) (7) therefore is granted and the cross-motion
with respect to the claim is denied.
Defendant argues further that it cannot be held liable for violating Labor
Law § 200. The statute codifies the common law duty of an owner or
contractor to exercise reasonable care in providing workers with a safe
workplace. (See Comes v New York State Elec. & Gas Corp.
, 82 NY2d
876, 877 .) To hold an owner or contractor liable under this provision, a
claimant must establish that the defendant exercised supervision or control over
the work being performed or had actual or constructive notice of the unsafe
activity giving rise to the injury.
(Molyneaux v City of New York
, 28 AD3d 438 [2nd Dept 2006].)
The undisputed evidence regarding these issues is provided by the deposition
testimony of Robert Laurice, an engineer from the New York State Department of
Transportation. He testified that the prime contractor won the bid to install
the barriers on the highway. It hired and coordinated the work of five to
ten subcontractors working in various trades. He [Laurice] was responsible for
directly supervising the State’s contract with the prime contractor, that
is, ensuring the job was performed according to the plans and specifications.
He was present at the job site every day. The regional office approved the
hiring of the subcontractors by the prime contractor, and the prime contractor
submitted a daily work schedule for the subs to Mr. Laurice. The State had
no input in devising the schedules.
Mr. Laurice explained that State employees and consultant inspectors were
responsible for inspecting the operations and submitted daily reports to him.
State inspectors had no “ability” to stop an operation if they
found it involved a safety violation. He said that, in theory, he was able to
shut down the operation and/or stop an unsafe practice but, most typically, an
inspector who found an unsafe situation would locate the responsible foreman and
deal with the situation that way.
Mr. Laurice said the State had an off-site field office for ten State
employees and approximately fifteen construction inspectors who were independent
contractors working for a consulting firm hired by the State to perform safety
inspections in the field. The chief inspector for the project was from this
consultant, and this chief assigned the other inspectors their duties.
Mr. Laurice ran weekly meetings at the field office attended by four or five
employees of the prime contractor, two or three State employees, and four
consultants. The meetings were progress sessions which concerned
construction-related issues. Mr. Laurice did not recall whether safety
issues were discussed. He did not know whether the prime contractor actually
conducted weekly safety meetings although he acknowledged occasionally receiving
copies of logs from some safety meetings “every once in a while.”
The State held safety meetings every few months for State employees and
inspectors working for the consultant.
According to Mr. Laurice, a State inspector checked each barrier after it
was erected to see that it was properly aligned, not how it was set. This
latter task was the responsibility of the prime contractor’s
“competent person.” The prime contractor’s foreman was the
person who determined whether a barrier was swinging while it was placed in
position. He also determined whether a shim was needed to “steady”
It is the court’s view of this testimony evidence that the State
did not have the ability to exercise control over the conditions which gave rise
to claimant’s injury. As noted in Dennis v City of New York,
304 AD2d 611 [2nd Dept 2003), general supervisory authority at a work site,
including the ability to stop a contractor’s work if a violation is
observed insufficient to impose liability on an owner or general contractor
under Labor Law § 200. Here, the State contributed nothing to the myriad
decisions which created the circumstances which resulted in claimant being
injured. The State neither designed nor implemented the procedure used to erect
the barriers, it provided none of the equipment or materials to be used and had
nothing to do with deciding how or when the claimant and his co-workers were to
perform their respective tasks. Such matters were the sole province of the
prime contractor. See Dennis v City of New York
, 304 AD2d 611 [2nd
The facts similarly demonstrate the State had no actual notice of the
circumstances surrounding the accident because it had no role in determining or
overseeing the work claimant performed for the prime contractor. The State had
no constructive notice either. The testimony established that the same
procedure had been used to erect the barriers over the previous two months,
without incident. There is no basis to charge the State with constructive
notice of an unsafe condition.
Dos Santos v STV Engineers, Inc.
, 8 AD3d 223 [2nd Dept 2004].)
Based on the foregoing, defendant’s motion for summary judgment
dismissing the claim asserted under Labor Law § 200 is granted;
§§ 240 and 241  is denied, except as to violations based on
Industrial Code § 23-8.1 (f) (7); claimant’s cross-motion for
summary judgment is denied.
The parties are directed to contact Chambers upon receipt of this decision and
order to schedule a trial preparation conference forthwith.
January 31, 2007
York, New York
HON. MELVIN L. SCHWEITZER
Judge of the Court of
.The court considered the following papers in
deciding the motions: notice of motion dated September 7, 2006 with supporting
affirmation and exhibits; notice of cross-motion dated October l8, 2006 with
affirmation in support of cross-motion and in opposition to motion and exhibits;
affirmation in opposition to cross-motion and reply affirmation in support of
motion for summary judgment dated November l, 2006 and exhibit; and reply
affirmation dated November 6, 2006.
. Claimant’s foreman testified that
claimant told him his hand was caught under the barrier when he tried to clean
off some dirt and debris that was on the concrete pads while the barrier was
.The cases defendant relies on are inapposite.
For example, in Tillman v Triou’s Custom Homes, Inc.
254 [4th Dept 1999]), the court rejected the contention that the surface of a
flatbed truck is an elevated work surface within the scope of § 240(1)
because there was no “exceptionally dangerous” condition created by
the elevation differential between the truck and the ground and no significant
risk arising from that differential. Here, the risk arises from requiring
claimant to work in close proximity to a 48,000-pound concrete block being
hoisted to some higher elevation before being swung into place and then lowered
next to claimant where he stood waiting on the ground.
.The bill of particulars enumerates various
regulations under § 23-1 and generally identifies § “23-6 et
. As a result of this decision, if defendant
believes it needs additional discovery before trial, the court will entertain an
application for this purpose.
. The court further notes claimant’s
failure to defend any of the other rules cited in his bill of particulars under
Industrial Code § 23-1. He is therefore deemed to have conceded the
inapplicability of those rules and may not rely on them at trial.
.Defendant’s reliance on Lopes v
, 45 NY2d 617  for the proposition that the State did not owe
claimant a duty to maintain the “roadway” in a safe condition is
concerned whether the county’s nondelegable duty
to the public under sections l02 and l39 of the New York Highway Law extended to
injuries caused to contractor’s employees. Here, the claim is for
violation of Labor Law § 200, an action sounding in common law
negligence as to which an owner may be held liable under these
. The cases claimant relies upon to show
defendant controlled the project involve substantively different circumstances.
In Rizzuto v L.A. Wenger Contracting Co.
91 NY2d 343 , issues of
fact existed where the defendant contractor had the ability to coordinate the
activity of the subcontractors and the property owner. In Walls v Turner
(4 NY3d 861 ), the defendant construction
manager, unlike a “typical” one, was deemed to be the
owner’s agent under Labor Law § 240 (1) because it functioned as
the “eyes, ears and voice” of the owner on the project.
.Absent a basis to hold defendant liable under
Labor Law § 200, the court need not consider defendant’s further
contention that claimant’s contributory negligence was a superseding event
which caused his injuries as a matter of law. (See e.g. Egan v A.J.
., 94 NY2d 839 [ 1999].)