New York State Court of Claims

New York State Court of Claims

MURO v. STATE OF NEW YORK, #2007-039-063, Claim No. 111524, Motion No. M-73713


Synopsis


Defendant’s motion for summary judgment is denied. Claimant seeks relief pursuant to, among other provisions, Labor Law § 240 for injuries allegedly sustained while he was installing computer wires in a building located at the Pilgrim Psychiatric Center. The Court finds that material issues of fact exist regarding defendant’s ownership of the building where the accident occurred. The proof before the Court is that defendant did not convey the property upon which the building is located in fee simple. Rather, defendant retained a property interest in the form of a possibility of reverter which will be triggered automatically upon payment of, among other financial conditions, all annual payments by the grantee. Thus, the Court is unable to say that there is no “nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004]).

Case Information

UID:
2007-039-063
Claimant(s):
INNOCENT MURO
Claimant short name:
MURO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111524
Motion number(s):
M-73713
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Medina & Ketover, LLPBy: Daniel A. Shafer, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John L. Belford, IV, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant Innocent Muro seeks damages pursuant to Labor Law §§ 200, 240 and 241. He alleges, among other things, that on January 20, 2005, while an employee of the Dormitory Authority of the State of New York (hereinafter DASNY), he sustained injuries when installing computer wire in a structure identified as Building #26 at the Pilgrim Psychiatric Center and owned by the State of New York. Claimant filed a note of issue and certificate of readiness with the Court on May 9, 2007. Defendant now moves the Court for an order granting summary judgment against claimant and dismissing the claim. The sole issue submitted for the Court’s consideration is whether a triable issue of fact exists regarding defendant’s ownership of the property where claimant allegedly sustained his injuries for purposes of imposing liability pursuant to Labor Law §§ 200, 240 and 241.

“Labor Law § 240 (1) is to be liberally construed to effectuate the Legislature’s purpose of protecting laborers [citations omitted] ‘who ply their livelihoods on ladders and scaffolds [and who] usually have no choice but to work with the equipment at hand, though danger looms large’” (Otero v Cablevision of New York, 297 AD2d 632, 633 [2002], quoting Koenig v Patrick Cons. Corp., 298 NY 313, 318-319 [1948]). The purpose of Labor Law § 240 “ ‘is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves’ ” (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004], quoting Panek v County of Albany, 99 NY2d 452, 457 [2003]). “[T]he statute imposes absolute liability on owners and contractors for any breach of the statutory duty that proximately causes injury” (id.). “The duty imposed is ‘nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or

control’ ” (Gordon v Eastern Railway Supply, Inc., 82 NY2d 555, 560 [1993]), quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). “Liability rests upon the fact of ownership” (Gordon v Eastern Railway Supply, Inc., supra at 559). “The term ‘owners’ [however] is not expressly defined in section 241" (Manning v St. John’s Smithtown Hosp., 141 Misc 2d 739, 741 [1988]).

In Celestine v City of New York (86 AD2d 592 [1982]), defendant contended that it was was not an owner within Labor Law § 241 (6) “because the property was subject to an easement it had granted to the City of New York and the New York City Transit Authority” (Gordon v Eastern Railway Supply, Inc., supra at 559). The Court “recognized that the statute imposes liability on ‘all owners’, without regard to encumbrances, and that the duty to provide safe working conditions is nondelegable regardless of control” (id. at 559-560). In Gordon v Eastern Railway Supply, Inc. (supra at 558), defendant leased the real property upon which plaintiff’s accident occurred to its subsidiary. The Court affirmed the Appellate Division’s grant of summary judgment to plaintiff. After considering the legislative history of section 240 and its affirmance in Celestine (supra), the Court held “that when the Legislature imposed the duties of section 240 (1) on ‘all . . . owners’ it intended to include owners in fee even though the property might be leased to another” (Gordon v Eastern Railway Supply, Inc., supra at 560; see also Coleman v City of New York, 91 NY2d 821 [1997]). “Common to Celestine, Gordon and Coleman - and to all cases imposing Labor Law § 240 (1) liability on an out-of-possession owner - is some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello v Lancaster Studio Assoc., supra at 51). Nor may an owner avoid liability under Labor Law § 240 by temporarily transferring the deed to a grantee where the transfer “clearly constitute[s] nothing more than a financing mechanism, not a genuine transfer of ownership” (Vigliotti v Executive Land Corp., 186 AD2d 646, 647 [1992]).

Here, it is undisputed that in 1990 Building #26 was deeded by the State of New York to The New York State Medical Care Facilities Finance Agency (hereinafter MCFFA), a public benefit corporation, as part of a much larger conveyance of property now known as Pilgrim Psychiatric Center (hereinafter PPC). Thereafter, DASNY became MCFFA’s successor-in-interest to the deeded property pursuant to the Public Authorities Law (see copy of Lapetina letter to AAG Tisk attached as part of Defendant’s Exhibit “B”; Defendant’s Exhibit “C”, p. 12). The proof before the Court establishes that DASNY acquired the PPC subject to the same deed conveying the property to MCFFA (see Claimant’s Exhibit “A”, p. 15). Defendant offers a copy of the deed in support of its motion (see Defendant’s Exhibit “B”). The deed provides, among other things, that all of the property conveyed to MCFFA will revert to the State of New York
“at such time as all Annual Payments due or to become due to [MCFFA], and any sums for interest thereon . . . have been paid, and [MCFFA] shall have paid and retired all of the bonds issued by it to finance the cost of all Projects specified in ... Supplemental Agreement No. 6 . . . [and] all the right, title and interest of [MCFFA] in and to such Property shall cease and determine and such Property shall be and become the property of [the State of New York] without the necessity of further entry thereupon.”

The parties offer portions of the deposition testimony of Mauro J. Lapetina, Assistant General Counsel to DASNY, in support of their respective positions (see Defendant’s Exhibit “C”, p. 5). Lapetina testified that DASNY is the owner of Building #26 which houses Office of Mental Health (hereinafter OMH) and DASNY offices (see Defendant’s Exhibit “C”, pp 8-9). He described OMH as “one of the three independent offices in the Department of Mental Hygiene which is part of the executive branch of the State of New York” with, what he believes, is a statutory right to use Building #26 (see Claimant’s Exhibit “A”, pp 16-17, 25-26). Lapetina characterized OMH as the largest operating entity on the PPC with ownership interests in some of the buildings and parcels (see Claimant’s Exhibit “A”, pp 25, 28). With respect to maintenance of the PPC, however, it was Lapetina’s understanding that OMH was the responsible entity (see Defendant’s Exhibit “C”, p. 10; Claimant’s Exhibit “A”, p. 17). This was supported by the deposition testimony of Robert Ryan, Plant Superintendent for OMH at the PPC, who testified that he oversees maintenance and that, if any work needs to be done at Building #26, he is involved with hiring contractors and subcontractors (see Defendant’s Exhibit “D”, pp 5-6). Ryan also believed, but needed to confirm, that the repair work that was done to the ceiling following claimant’s fall was performed by members of his staff and under his supervision (see Defendant’s Exhibit “D”, p. 15).

“Summary judgment is a drastic remedy and should only be granted when no material facts are sufficiently disputed as to warrant a trial” (Gadani v Dormitory Auth. of State of New York, 43 AD3d 1218, 1219 [2007]). “The totality of the evidence should be viewed in a light most favorable to the nonmoving party and we should accord it the benefit of every reasonable inference” (id.). “The court’s function on a motion for summary judgment is issue finding not issue determination and, where a genuine issue of fact exists, summary judgment must be denied” (id.).

Based upon the record before it, the Court finds that material issues of fact exist regarding defendant’s ownership of Building #26 which precludes summary judgment in favor of defendant. The proof before the Court is that defendant did not convey the property upon which the PPC is located, including Building #26, in fee simple. Rather, defendant retained a property interest in the form of a possibility of reverter, which will be triggered automatically upon payment of, among other financial conditions, all annual payments by the grantee, DASNY (see Defendant’s Exhibit “B”; see also Vigliotti v Executive Land Corp., supra at 647). Thus, the Court cannot say that there is no “nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello v Lancaster Studio Assoc., supra at 51). A question of fact also exists regarding OMH’s duty, and thus defendant’s duty, to maintain Building #26, (see Pouso v City of New York, 177 AD2d 560, 562 [1991]) thereby creating an additional nexus between defendant and claimant upon which liability pursuant to Labor Law §§ 200, 240 and 241 can be premised (see deposition testimony of Superintendent Ryan, supra).

Accordingly, it is hereby ordered that Motion No. M-73713 is denied.

February 21, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion dated July 11, 2007;
  2. Affirmation in Support of Motion for Summary Judgment by John L. Belford, IV, AAG, dated July 11, 2007 with exhibits;
  3. Affirmation in Opposition by Daniel A. Shafer dated August 9, 2007 with exhibit; and
  4. Reply Affirmation by John L. Belford, IV, AAG dated August 29, 2007.