New York State Court of Claims

New York State Court of Claims

MORZILLO v. THE STATE OF NEW YORK, #2008-033-585, Claim No. 107242


Synopsis



Case Information

UID:
2008-033-585
Claimant(s):
NICOLO MORZILLO and PATRICIA MORZILLO
Claimant short name:
MORZILLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107242
Motion number(s):

Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Brody, O’Connor & O’Connor, Esqs.By: Scott A. Brody, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Victor D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a timely filed claim for damages by Nicolo Morzillo (hereinafter "claimant")[1] and Patricia Morzillo based upon the alleged negligence of the defendant. The bifurcated trial of this claim was held on March 27, 2007, on the issue of liability. The parties stipulated to submitting the trial to the Court based upon witness depositions. The following depositions were submitted to the Court for consideration: claimant; Richard Hamablet (hereinafter “Hamablet”), an Elemco employee; Joseph DiCecco (hereinafter “DiCecco”), an employee of New York State Office of Mental Health; Carlos Irizarry (hereinafter “Irizarry”), an Elemco employee[2]; Robert White (hereinafter “White”), president of Elemco; and Richard Scharf (hereinafter “Scharf”), an employee of New York State Office of Mental Health. In addition, the parties stipulated to exhibits to be entered into evidence. Claimant submitted Exhibits 1 through 4. Exhibits 3 and 4 were objected to by defendant as incident reports based upon hearsay. The Court overrules the objections and admits the documents into evidence. Defendant submitted Exhibits A through V. Exhibits R, S, T and U were objected to by claimant. The Court overrules the objections to Exhibits R, S, and U and admits the exhibits into evidence. The Court sustains the objection to Exhibit T.


On January 27, 2002, Pilgrim State Psychiatric Center (hereinafter “Pilgrim”) experienced a power failure in a group of buildings known as the “80's group”. DiCecco was the plant utility engineer at Pilgrim. At approximately 7:00 a.m., DiCecco went to the Chiller Plant[3] to examine the electrical gear. The electrical equipment is contained in a row of metal cabinets. DiCecco opened a cabinet containing the circuit breakers for the 80's group. He de-energized the cabinet, a process referred to as “locking out and tagging out” the breaker. This was accomplished by disengaging the breaker. After the breaker was disengaged, it was locked and tagged to indicate the cabinet was safe to be worked on. At this point, DiCecco notified his supervisor and New York State Office of General Services. Arrangements were made for an independent contractor to come to Pilgrim on an emergency basis and effectuate the necessary repairs.

Elemco Testing, Inc. (hereinafter “Elemco”) was the contractor contacted to make the repairs. Hamablet was the Elemco employee in charge and arrived at Pilgrim at approximately 7:30 a.m. Claimant and Hamablet proceeded to the Chiller Plant where they locked out and tagged out the 80's A and B feeder breakers. Claimant and Hamablet then left the Chiller Plant and searched from manhole to manhole to locate the fault in the cable that caused the power outage. After locating the fault, additional Elemco employees were called to Pilgrim, including Carlos Irizarry, and over the next several hours, the Elemco employees repaired the damaged cables.

A test was then performed on the cables to determine if they could hold electricity. The test indicated a problem which the Elemco employees determined was caused by lightening arrestors on the line. At this point, Hamablet directed claimant and Irizarry to go to the Chiller Plant and remove the lightening arrestors from the 80's group A feeder cabinet (the same cabinet Hamablet and claimant had locked out and tagged out in the morning). Hamablet directed claimant to go because he had been at the Chiller Plant earlier in the day and should have known which cabinet to work on. Claimant also assumed that it would be the same cabinet, but did not remember exactly which cabinet it was.

DiCecco directed Scharf to accompany Irizarry and claimant to the Chiller Plant. Scharf was sent to open doors for Irizarry and claimant and give them access to the necessary area. Hamablet said the Elemco employees were his crew and were not under the supervision of New York State employees. The New York State employees were present to offer guidance because of their familiarity with the facility.

According to Scharf, Irizarry and claimant were questioned as to what they were looking for after arriving at the Chiller Plant, but neither responded. Irizarry and claimant were asked a couple more times what they were looking for but made no response. Eventually, Scharf directed the two men to the front of the electrical cabinets which were clearly marked on the front and the back as to their identities. Scharf testified that he did not point to a specific cabinet. However, both Irizarry and claimant testified Scharf directed them to a specific cabinet.

Irizarry testified that neither he nor claimant ever opened the front of any of the cabinets to determine which had been locked out and tagged out. The men asked Scharf for a ladder. Scharf went out to his truck to get it. Irizarry and claimant went to the back of the cabinets and Irizarry began to remove the back cover of the A Main feeder. When Scharf returned with the ladder, he was told it was not needed. He was then sent back to his truck to retrieve a screw gun. By the time Scharf returned the back cover of the cabinet had been removed. Irizarry and claimant never performed any test to determine if the power to the cabinet had been turned off. According to claimant, neither he nor Irizarry were wearing safety gloves, a hat or a face shield at the time of the accident. Irizarry was bending over at the back of the cabinet and claimant was just over his shoulder looking into the cabinet. Scharf was approximately two feet to the left of Irizarry. At this point, an explosion occurred in the cabinet, injuring both Irizarry and claimant.

White arrived at Pilgrim after the accident to investigate and prepared accident reports (Exhibits R and S). It was his determination that the accident was caused due to the failure of Irizarry and claimant to follow industry safety procedures to test for electricity.

Labor Law §200 is the codification of the common-law duty of an owner and contractor to maintain a safe workplace for the protection of workers (Jock v Fien, 80 NY2d 965; Romang v Welsbach Elec. Corp., 47 AD3d 789). Liability will not attach to an owner absent some showing of supervisory control over the workers (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494; Lombardi v Stout, 80 NY2d 290; Angelucci v Sands, 297 AD2d 764).

By claimant’s own account, defendant did not exercise any control over the Elemco employees. Assuming arguendo that Scharf directed Irizarry and claimant to an electrical cabinet, this does not constitute supervisory control. Scharf’s action merely directs Irizarry and claimant to the correct location and to the correct cabinet. The actual work was left to the Elemco employees. As Hamablet stated, the New York State employees were only present to give access to the facility. Hamablet controlled and supervised his crew.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.


March 19, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The claim of Patricia Morzillo is derivative in nature. The Court will use the singular “claimant” to refer to Nicolo Morzillo.
[2].Mr. Irizarry is also a claimant before this Court in regard to this incident (Claim No. 107614).
[3].The Chiller Plant was the name of the building containing the electrical switch gear.