This is a timely filed claim for damages by Nicolo Morzillo (hereinafter
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
; 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
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
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
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
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.