New York State Court of Claims

New York State Court of Claims
BONAFEDE v. STATE OF NEW YORK, # 2007-037-063, Claim No. 110353, Motion No. M-73963

Synopsis

Case information

UID: 2007-037-063
Claimant(s): DANIEL J. BONAFEDE
Claimant short name: BONAFEDE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110353
Motion number(s): M-73963
Cross-motion number(s):
Judge: JEREMIAH J. MORIARTY III
Claimant's attorney: Collins & Maxwell, LLP
By: William D. Murphy, Esq.
Defendant's attorney: Law Offices of Laurie G. Ogden
By: Daniel J. Caffrey, Esq.
Third-party defendant's attorney:
Signature date: February 13, 2008
City: Buffalo
Comments:
Official citation: 60 AD3d 1373 (2009)
Appellate results: Affirmed
See also (multicaptioned case)

Decision

The following were read and considered with respect to Defendant's motion for summary judgment:

1. Defendant's notice of motion and supporting affirmation of Daniel J. Caffrey, Esq.

dated September 13, 2007, with annexed exhibits A-G; Defendant's memorandum of law dated September 13, 2007; and supporting affidavit of John P. Coniglio, Ph.D, CSP, CHMM, RPIH sworn to May 17, 2007;

2. Claimant's opposing affirmation of William D. Murphy, Esq. dated November 13,

2007, with annexed exhibits 1-4;

3. Defendant's reply affirmation of Daniel J. Caffrey, Esq. dated November 16, 2007,

with annexed exhibits A-B;

Filed papers: Claim filed January 12, 2005; Answer filed March 11, 2005.

On October 26, 2004, Claimant, a construction laborer employed by Oakgrove Construction Inc. (Oakgrove), was injured at a construction site on New York State Route 98 (Route 98) in the Town of Farmersville, Cattaraugus County, New York. Oakgrove was the general contractor hired by the State of New York for the Route 98 rehabilitation project which involved resurfacing the roadway, bridge replacement and drainage improvements. Claimant alleges that at the time of the accident he was carrying wooden concrete forms from a creek bed up an incline to the roadway surface during the installation of a road culvert when he stepped on a field stone, lost his footing and fell sustaining bodily injuries. Claimant maintains that Defendant, as owner of the work site, was negligent in failing to provide him with a safe place to work in violation of 200, 240 (1) and 241 (6) of the Labor Law.

Defendant moves for summary judgment dismissing the claim in its entirety pursuant to CPLR 3212 (b), arguing that Claimant does not have a valid Labor Law 240 (1) cause of action because he was not involved in a height related accident; does not have a valid Labor Law 241 (6) cause of action because he cannot prove a violation of any New York State Industrial Code (Industrial Code) section; and he does not have a valid Labor Law 200 or common law cause of action because the State of New York did not direct, supervise or control the work Claimant was performing at the time of the accident, nor is there any evidence to suggest that the State created a dangerous condition which caused the accident.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, supra at 562). Applying those principles to this claim has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence. Every reasonable inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the Claimant.

Turning first to that part of Defendant's motion for summary judgment regarding Claimant's Labor Law 240 (1) cause of action, the Court finds that based upon the facts presented that section is not applicable to this claim. Labor Law 240 (1) requires contractors and owners to provide safety devices in order to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Furthermore, Claimant does not oppose this branch of Defendant's motion. Accordingly, Defendant's motion for summary judgment based on Claimant's 240 (1) claim is hereby granted.

Section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). However, in order to sustain a cause of action under this section, Claimant must allege and prove that Defendant violated a rule or regulation of the Industrial Code which sets forth a specific standard of conduct, as opposed to a general reiteration of common-law principles (Ross v Curtis-Palmer Hydro-Elec. Co., supra). Alleging a violation of the Industrial Code is a predicate to imposing liability upon the Defendant (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]).

According to his Verified Bill of Particulars(2) , Claimant asserts violations of multiple provisions of the Industrial Code, specifically 12 NYCRR 23-1.5, 23-1.7, 23-1.16, 23-1.17, 23-1.21, 23-1.22, 23-1.23, 23-2.1 and 23-2.2, and violations of various Occupational Safety and Health Administration (OSHA) Regulations in an effort to impose liability under Labor Law 241 (6). Violations of OSHA standards do not provide a basis for liability under 241 (6) (Rizzuto v L.A. Wenger Contr. Co., supra at 351; McGrath v Lake Tree Village Assoc., 216 AD2d 877 [1995]; McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878 [1995], lv denied 86 NY2d 710 [1995]). Likewise, provisions of the Industrial Code that reiterate general common-law standards and that do not "mandat[e] compliance with concrete specifications" are not a basis for liability under 241 (6) (Ross v Curtis-Palmer Hydro-Elec., supra at 505; Soles v Eastman Kodak Co., 216 AD2d 973 [1995]). Here Defendant correctly argues and Claimant concedes that 23-1.5, 23-1.7(a), 23-1.7 (b), 23-1.16, 23-1.17, 23-1.21, 23-1.22 and 23-2.2 are either not applicable to the facts presented in this claim or are not specific safety standards capable of supporting a Labor Law 241 (6) cause of action. Accordingly, the branch of Defendant's summary judgment motion based upon claims under Industrial Code 23-1.5, 23-1.7 (a), 23-1.7 (b), 23-1.16, 23-1.17, 23-1.21, 23-1.22 and 23-2.2 is hereby granted.

The violations asserted by Claimant which remain in dispute are Industrial Code 23-1.7 (d), 23-1.7 (e) (1), 23-1.7 (f), 23-1.23 (a) and 23-1.23 (d), which the Court will address seriatum. Industrial Code 23-1.7(d) entitled "Slipping hazards" states, "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Claimant has conceded that at the time of the accident he was not working on an "elevated working surface" and through his deposition testimony(3) , Claimant stated that he fell after stepping on a rock that was lying on the ground while ascending an incline from a creek bed up to the roadway surface. Thus, although 23-1.7 (d) is sufficiently specific to sustain a Labor Law 241 (6) claim (see Ramski v Zappia Enters., 229 AD2d 990 [1996]), that regulation is inapplicable to the facts of this case because the area in which Claimant's injury occurred does not qualify as a "floor, passageway, walkway, scaffold, platform or other elevated working surface" contemplated by the regulation (see Lawyer v Hoffman, 275 AD2d 541 [2000]). Accordingly, the branch of Defendant's summary judgment motion based on Claimant's 23-1.7 (d) claim is hereby granted.

Claimant next seeks to impose liability on the Defendant under Industrial Code 23-1.7 (e) which refers to "Tripping and other hazards", while subsection (1) deals with passageways and provides: "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." Liability under this section depends upon Claimant showing that he was injured in a passageway or defined walkway. This regulation does not apply to a claimant who "slipped in an open area of the construction site, and not within a defined walkway or passageway" (Morra v White, 276 AD2d 536, 537 [2000]; see also Dalanna v City of New York, 308 AD2d 400 [2003]). The evidence on this record indicates that Claimant was injured in an open construction area where, as he stated in his deposition, he was performing a task that he was hired to perform and had made at least ten trips from the creek bed up the incline to the roadway surface prior to the accident. Therefore, the Court determines that Claimant's accident did not occur in a passageway or defined walkway, but in a work area and the branch of Defendant's summary judgment motion requesting dismissal of the 23-1.7 (e) (1) claim is hereby granted.

The next branch of Defendant's summary judgment motion seeks to dismiss Claimant's 23-1.7 (f) claim. This provision of the Industrial Code is entitled "Vertical passage" and provides: "Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided." However, this regulation must be read together with Industrial Code 23-1.23 (a) and 23-1.23 (d) which are also before the Court for consideration. These regulations, in relevant part, provide as follows:

"(a) Construction. Earth ramps and runways shall be constructed of suitable soil, gravel, stone or similar embankment material. Such material shall be placed in layers not exceeding three feet in depth and each such layer shall be properly compacted except where an earth ramp or runway consists of undisturbed material. Earth ramp and runway surfaces shall be maintained free from potholes, soft spots or excessive unevenness.

(d) Earth ramps and runways used by persons. Earth ramps and runways used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall be at least 48 inches in width. Such ramps and runways more than four feet above the adjacent ground, grade or equivalent level shall be provided with safety railings constructed and installed in compliance with this Part (rule). The total rise of any continuous ramp or runway used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall not exceed 12 feet unless such rise is broken by a horizontal section at least four feet in length every 50 feet."

There is no proof on this record that Claimant fell on a stairway, earth ramp, or runway specially constructed for the work he was performing. As indicated in his deposition testimony, Claimant accessed the work area adjacent to the box culvert by walking up and down the creek embankment. Thus, these regulations have no application to the manner in which Claimant allegedly sustained his injury and the branch of Defendant's summary judgment motion requesting dismissal of the 23-1.7 (f), 23-1.23 (a) and 23-1.23 (d) claims is hereby granted.

With respect to Claimant's claim of a violation of Labor Law 200, it is a codification of "the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto v L.A. Wenger Contr. Co., supra at 352). "It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition" (Rizzuto v L.A. Wenger Contr. Co., supra at 352). Thus, liability attaches to a landowner only when the accident was caused by a dangerous condition at the work site, and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident. "It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law" (Lombardi v Stout, 80 NY2d 290, 295 [1992]; see also Comes v New York State Elec. & Gas Corp., supra at 877; Rizzuto v L.A. Wenger Contr. Co., supra).

The prerequisite that the owner or general contractor must possess some meaningful supervisory control over the operation which led to Claimant's injury is not a mere technicality. In fact, owners and general contractors can maintain a significant presence at a work site without incurring liability under Labor Law 200. "[A]n owner or general contractor's retention of general supervisory control, presence at the worksite or authority to enforce general safety standards is insufficient to establish the necessary control" for a 200 claim (Soshinsky v Cornell Univ., 268 AD2d 947 [2000]). An owner or employer does not supervise or control the performance of the work for the purposes of Labor Law 200 merely by presenting ideas and suggestions, making observations and inquiries, and inspecting the work (Comes v New York State Elec. & Gas Corp., supra; see also Cooper v Sonwil Distrib. Ctr., Inc., 15 AD3d 878 [2005]).

The deposition testimony of Claimant and Daniel P. Mohr, an employee of Defendant, establish that Defendant did not exercise the requisite supervision or control over or the manner in which Claimant performed the work so as to warrant the imposition of Labor Law 200 liability. The general oversight provided by Defendant at the work site is not to be equated with the direct supervision and control over the manner of the performance of the work necessary to establish liability under that section (see Comes v New York State Elec. & Gas Corp., supra at 877; Ross v Curtis-Palmer Hydro-Elec. Co., supra at 505-506; McCune v Black Riv. Constructors, 225 AD2d 1078 [1996]). In addition, Claimant's account of the accident establishes that there was no dangerous condition on the premises which caused the accident, but rather it was caused by the manner and method by which Claimant removed the materials from the creek. There is no evidence that Defendant exercised supervisory control over or had any input into the method Claimant used to perform his work. Consequently, the branch of Defendant's summary judgment motion seeking dismissal of the Labor Law 200 claim is hereby granted.

Accordingly, it is hereby

ORDERED that Defendant's motion for summary judgment is granted in its entirety and the claim is hereby dismissed.

February 13, 2008

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims


2. Court Rules require that all papers that are served upon a party must be filed in the office of the Clerk of the Court of Claims (22 NYCRR 206.5 [c]). Claimant does not appear to have filed his Verified Bill of Particulars as required, and is directed to do so. For purposes of this motion, the Bill of Particulars is annexed to Attorney's Affirmation in Support of Defendant's Motion for Summary Judgment as Exhibit C.

3. Excerpts of Claimant's deposition testimony are annexed to the Attorney's Affirmation in Support of Defendant's Motion for Summary Judgment as Exhibit D.