New York State Court of Claims

New York State Court of Claims

ZAJICEK v. THE STATE OF NEW YORK, #2008-033-313, Claim No. 113205, Motion No. M-74697


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:
Siben & Siben, LLPBy: Richard K. Perskin, Esq.
Defendant’s attorney:
Law Office of John P. HumphreysBy: Scott L. Gumpert, Esq.
Third-party defendant’s attorney:

Signature date:
December 15, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries allegedly sustained on September 12, 2005, by Damian Zajicek (hereinafter "claimant") while working under the overpass on the westbound lanes of Sunrise Highway at its intersection with Horseblock Road, Yaphank, New York. The claim alleges violations of Labor Law §§ 240(1), 241(6) and 200.

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

On the day of his injury, claimant was working with a gas powered pavement cutting saw. The saw exploded causing injuries to claimant.

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).

To establish liability under Labor Law §241(6), the court in Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 349 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).

From the evidence and arguments presented, it is clear that a significant issue of fact exists to prevent the Court from granting summary judgment. While defendant states that maintenance was done on the saw, it is unclear who did the maintenance or what was done to the saw.

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

December 15, 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 for Summary Judgment dated March 11, 2008 and filed March 20, 2008; Affirmation in Support of Scott L. Gumpert, Esq. with annexed Exhibits A-G dated March 17, 2008 and filed March 20, 2008; Affirmation in Opposition of Richard K. Perskin, Esq. with annexed Exhibits 1-7 dated May 12, 2008 and filed May 15, 2008; Reply Affirmation of Scott L. Gumpert, Esq. with annexed Exhibit AA dated June 20, 2008 and filed June 23, 2008.