New York State Court of Claims

New York State Court of Claims

HOPE v. THE STATE OF NEW YORK, #2008-033-311, Claim No. 111458, Motion No. M-74821


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):

James J. Lack
Claimant’s attorney:
Hach & Rose, LLPBy: Philip S. Abate, Esq.
Defendant’s attorney:
Law Office of John P. HumphreysBy: Andrea G. Sawyers, Esq.
Third-party defendant’s attorney:

Signature date:
September 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries sustained on August 18, 2005, when Robert Hope (hereinafter "claimant") fell on debris while lowering a water pump on a drainage project on Montauk Highway, West Babylon, New York. The claim of Maryellen Hope is derivative in nature. The claim alleges a violation of Labor Law §§ 241(6) and 200.

Defendant moves summary judgment pursuant to CPLR 3212[1].

On the day of his injury, claimant was involved in the excavation on this project. As a laborer, claimant would enter into a trench after it had been dug by a backhoe. But, claimant and other laborers could not enter this trench because water was accumulating in it. Two pumps were being used to empty the water, and a third pump was being primed by claimant and his supervisor, but the pump would not prime. Claimant lifted the pump with a pry bar for a few minutes while his supervisor tried to prime the pump. While claimant was lowering the pump he slipped on a piece of excavated asphalt and was injured.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

Labor Law §241(6) states
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.

In Rizzuto v L.A. Wenger Contracting Co. Inc., 91 NY2d 343, 348, the court held
Labor Law 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Long v Forest-Fehlhaber, 55 NY2d 154, 160, rearg denied 56 NY2d 805; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299-300, rearg denied 45 NY2d 776). Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at 407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44 NY2d, at 300, supra).

To establish liability under Labor Law §241(6), Rizzuto stated
Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. (supra), we refined the standard of liability under section 241 (6) by requiring that the rule or regulation alleged to have been breached be a " 'specific, positive command' " (81 NY2d, at 504, supra), rather than a " 'reiteration of common-law standards' " which would merely incorporate into the State Industrial Code a general duty of care (id.). We distinguished between Code provisions "mandating compliance with concrete specifications and those that establish general safety standards" ( id. at 505), cautioning that any other rule would permit recovery under section 241 (6) against a nonsupervising owner or general contractor merely by application of broad, nonspecific regulatory language and "would seriously distort the scheme of liability ... that has been developed in our case law" ( id. at 504).

at 349.

From the evidence and arguments presented, it is clear that a significant issue of fact exists to prevent the Court from granting summary judgment. The parties must show what debris the claimant slipped on, where it came from and what was to be done with it in order to determine if there was a violation of the industrial code.

Based upon the foregoing, defendant’s motion for summary judgment is denied.

September 26, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers were read and considered on defendant’s motion: Notice of Motion dated March 28, 2008 and filed March 31, 2008; Affirmation in Support of Andrea G. Sawyers, Esq. with annexed Exhibits A-G dated March 28, 2008 and filed March 31, 2008; Attorney Affirmation of Philip S. Abate, Esq. with annexed Exhibits A-B dated April 18, 2008 and filed April 23, 2008; Reply Affirmation of Andrea G. Sawyers, Esq. dated May 23, 2008 and filed May 27, 2008.