New York State Court of Claims

New York State Court of Claims

AL-DAILAMI v. NEW YORK STATE THRUWAY AUTHORITY, #2008-037-007, Claim No. 107102, Motion Nos. M-74223, CM-74365


Synopsis



Case Information

UID:
2008-037-007
Claimant(s):
MOHAMED AL-DAILAMI
Claimant short name:
AL-DAILAMI
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107102
Motion number(s):
M-74223
Cross-motion number(s):
CM-74365
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Ziller, Marsh & Lang, LLPBy: Cornelius J. Lang, Esq.
Defendant’s attorney:
Damon & Morey LLPBy: Hedwig M. Auletta, Esq.
Third-party defendant’s attorney:

Signature date:
March 4, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion for summary judgment and Claimant’s cross-motion for summary judgment:
1. Defendant’s notice of motion and supporting affirmation of Hedwig M. Auletta, Esq.,

dated November 15, 2007, with annexed exhibits A-G; supporting affidavit of Gary Hart, sworn to November 13, 2007; and Defendant’s memorandum of law dated November 15, 2007, with appendix;

2. Claimant’s notice of cross-motion and affidavit of Cornelius J. Lang, Esq., in

opposition to Defendant’s motion and in support of Claimant’s cross-motion, sworn to December 20, 2007; supporting affidavit of Peter Tasca, sworn to December 20, 2007, with annexed exhibits A-O; and Claimant’s memorandum of law dated December 20, 2007;

3. Responding/reply affirmation of Hedwig M. Auletta, Esq., dated December 31, 2007;

affidavit of Angelo Curtis, sworn to December 28, 2007; and responding/reply memorandum of law dated December 31, 2007.


Filed papers: Claim filed December 20, 2002; Answer filed March 19, 2007.

On September 30, 2002, Claimant, employed as an apprentice painter for Erie Interstate Contractors, Inc., was injured while removing debris from one of the Grand Island Bridges by means of a large vacuum truck known as a “Supersucker”. Apparently, on occasion, the hose line of the Supersucker would become clogged with wet iron debris that had been blasted off the bridge. On September 30, 2002, Claimant alleges that he was instructed to clear the clogged hose line by hitting it at various points with a hammer. The hose line gradually became unclogged as Claimant moved down the hose from the truck toward its opening. When hitting the hose close to its opening, Claimant alleges that his left arm and hand were suddenly sucked into the hose. Defendant, however, alleges that it is far more likely that something got stuck in the hose and that Claimant tried to pull it out with his hand. In his claim, Claimant maintains that Defendant failed to provide him with a safe place to work in violation of §§ 200, 240 (1), and 241 (6) of the Labor Law. Subsequently, Claimant voluntarily withdrew his § 240 (1) cause of action (see Defendant’s Exhibit D).

Defendant now moves for summary judgment dismissing the claim in its entirety pursuant to CPLR § 3212 (b), arguing that Claimant does not have a valid Labor Law § 241 (6) cause of action because the New York State Industrial Code (Industrial Code) sections cited by Claimant are either too general to support a 241 (6) cause of action or are not applicable under the circumstances presented, and that Claimant does not have a valid Labor Law § 200 or common law cause of action because the New York State Thruway Authority (Thruway Authority) did not direct, supervise or control the work Claimant was performing at the time of the accident, nor is there any evidence to suggest that the Thruway Authority created a dangerous condition which caused the accident. Claimant cross-moves for summary judgment alleging that Defendant violated specific Industrial Code Regulations 12 NYCRR 23-1.10 (b) (1), 12 NYCRR 23-2.1 (b) and 12 NYCRR 23-9.2 (a), and that accordingly, Defendant should be found liable under § 241 (6) of the Labor Law.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, supra at 562). Applying these principles to this claim has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence. Every inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the non-moving party.

Labor Law § 200 is a codification of “the common-law duty imposed upon an owner or general contractor to maintain a safe construction site” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, at 352 [1998]). “It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation ‘have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition’ ” (id quoting Russin v Picciano & Son, 54 NY2d 311, 317 [1981]). Thus, liability attaches to a landowner only when the accident was caused by a dangerous condition at the work site, and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident. “It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” (Lombardi v Stout, 80 NY2d 290, 295 [1992]; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876, at 877 [1993]; Rizzuto v L.A. Wenger Contr. Co., supra).

The prerequisite that the owner or general contractor must possess some meaningful supervisory control over the operation which led to Claimant’s injury is not a mere technicality. In fact, owners and general contractors can maintain a significant presence at a work site without incurring liability under Labor Law § 200. “[A]n owner or general contractor’s retention of general supervisory control, presence at the worksite or authority to enforce general safety standards is insufficient to establish the necessary control” for a § 200 claim (Soshinsky v Cornell Univ., 268 AD2d 947 [2000]). An owner or employer does not supervise or control the performance of the work for the purposes of Labor Law § 200 merely by presenting ideas and suggestions, making observations and inquiries, and inspecting the work (Comes v New York State Elec. & Gas Corp., supra at 877; see also Cooper v Sonwil Distrib. Ctr., Inc., 15 AD3d 878 [2005]).

The supporting affidavit of Gary Hart, a civil engineer for the Thruway Authority at the time of the accident, establishes that Defendant did not exercise the requisite supervision or control over the manner in which Claimant performed the work so as to warrant the imposition of Labor Law § 200 liability. The general oversight provided by Defendant at the work site is not to be equated with the direct supervision and control over the manner of the performance of the work necessary to establish liability under that section (see Comes v New York State Elec. & Gas Corp., supra at 877; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; McCune v Black Riv. Constructors, 225 AD2d 1078 [1996]). In addition, Claimant’s account of the accident establishes that there was no dangerous condition on the premises which caused the accident, but rather it was caused by the manner and method by which Claimant tried to remove debris from the hose line of the Supersucker. There is no evidence that Defendant exercised supervisory control over or had any input into the method Claimant used to perform his work. In fact, Claimant presented no opposition to Defendant’s motion to dismiss the Labor Law § 200 cause of action in his opposing papers or during oral argument. Consequently, the branch of Defendant’s summary judgment motion seeking dismissal of the claim under the common law of negligence and under Labor Law § 200 is hereby granted.

Section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Comes v New York State Elec. & Gas Corp., supra at 878). However, in order to sustain a cause of action under this section, Claimant must allege and prove that Defendant violated a rule or regulation of the Industrial Code which sets forth a specific standard of conduct, as opposed to a general reiteration of common-law principles (Ross v Curtis-Palmer Hydro-Elec. Co., supra). Alleging a violation of the Industrial Code is a predicate to imposing liability upon the Defendant (Rizzuto v L.A. Wenger Contr. Co., supra at 349).

According to his Verified Bill of Particulars[1], Claimant asserts violations of multiple provisions of the Industrial Code: 12 NYCRR §§ 23-1.5 (a), (b) and (c); 1.10; 1.12; 1.20; 2.1 (b); 6.1 (k); 9.2 (a), (b) and (d); and former 12 NYCRR § 19 in an effort to impose liability under Labor Law § 241 (6). Provisions of the Industrial Code that reiterate general common-law standards and that do not “mandat[e] compliance with concrete specifications” are not a basis for liability under § 241 (6) (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 505; Soles v Eastman Kodak Co., 216 AD2d 973 [1995]). Here, Defendant correctly argues and Claimant concedes that §§ 23-1.5 (a), (b) and (c), 23-1.10 (a), (b) (2) and (b) (3), 23-1.12, 23-1.20, 23-6.1 (k), 23-9.2 (b) and (d) and former § 19, are either not applicable to the facts presented in this claim or are not specific safety standards capable of supporting a Labor Law § 241 (6) cause of action. Accordingly, the branch of Defendant’s summary judgment motion seeking dismissal of all allegations of liability under Labor Law § 241 (6) as based on alleged violations of Industrial Code §§ 23-1.5 (a), (b) and (c), 23-1.10 (a), (b) (2) and (b) (3),[2] 23-1.12, 23-1.20, 23-6.1 (k), 23-9.2 (b) and (d) and former § 19 [3] is hereby granted.

The violations asserted by Claimant which remain in dispute are Industrial Code §§ 23–1.10 (b) (1), 23-2.1 (b) and 23-9.2 (a). The Court will address these sections of the Industrial Code seriatum.

Industrial Code § 23-1.10 (b) (1) states:
“Electric and pneumatic hand tools shall be disconnected from power sources and the pressure in hose lines shall be released before any adjustments or repairs are made except for the replacement of bits in electric drills. Before disconnecting any air hose, the air shall be shut off. Every electric and pneumatic hand tool shall be equipped with a cut-off switch within easy reach of the operator.”

This section of the Industrial Code applies only to electric and pneumatic hand tools. In the present case, Claimant was attempting to unclog the hose of a vacuum truck known as a Supersucker, weighing approximately 22 tons empty. A hose, decreasing in size from eight inches to six inches to four inches in diameter, extended away from the Supersucker vacuum truck anywhere from 400 to 800 feet. Claimant and his expert allege that this vacuum truck and/or its hose constitute hand tools within the purview of Industrial Code § 23-1.10 (b) (1), while Defendant argues they do not fall within the regulation. The issue whether either the Supersucker and/or its vacuum hose constitute hand tools within the meaning of this section of the Industrial Code is one of law for the Court to determine (Szafranski v Niagara Frontier Trans. Auth., 5 AD3d 1111 [2004]). While there is little guidance on the subject, the regulation itself refers to an electric drill as a hand tool and the Fourth Department in Szafranski, id., held that an air compressor and/or the gauge on the air compressor were not hand tools within the meaning of 23-1.10 (b) (1). Moreover, this Court granted defendant summary judgment based on an alleged violation of Industrial Code § 23-1.10 because this regulation related to hand tools and claimant failed to come forward with any evidentiary proof to establish that the water pump hose involved therein was the general type of hand tool envisioned by Industrial Code § 23-1.10 (see Way v State of New York, Ct Cl, March 13, 2001, Lebous, J., Claim No. 97106, Motion Nos. M-62426, CM-62677, UID # 2001-019-514). After careful consideration and review of the evidence presented herein, the Court concludes that neither the Supersucker truck nor its hose constitute the general type of hand tool governed by this regulation. Accordingly, Defendant’s motion to dismiss Claimant’s Labor Law § 241 (6) cause of action as based on an alleged violation of Industrial Code § 23-1.10 (b) (1) is granted and Claimant’s cross-motion for summary judgment pursuant to Labor Law § 241 (6) based on an alleged violation of this same section of the Industrial Code is denied.

Claimant also alleges that Defendant violated Industrial Code § 23-2.1 (b), which states:
“Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.”

Defendant argues that this regulation is not specific enough to form the basis of a Labor Law § 241 (6) claim. While other judicial departments agree with Defendant, this Court is governed by the Fourth Department which has consistently held that Industrial Code § 23-2.1 (b) is sufficiently specific to support a 241 (6) cause of action (Arenas v Bon-Ton Dept. Stores, Inc., 35 AD3d 1205 [2006]; Donnelly v City of Niagara Falls, 5 AD3d 1103 [2004]; Scally v Regional Indus. Partnership, 9 AD3d 865 [2004]). The more difficult issue is whether the regulation is applicable to the facts presented in this claim. Claimant argues that the Supersucker malfunctioned while he was in the process of clearing debris. Defendant argues that Claimant was not in the process of disposing of debris as contemplated by the regulation, but was trying to unclog the hose and had not even begun to clear debris at the time of the accident. While the Court is not persuaded at this point that Industrial Code § 23-2.1 (b) is applicable, Claimant has raised enough of a question of fact regarding its applicability to withstand Defendant’s summary judgment motion. Accordingly, Defendant’s motion for summary judgment and Claimant’s cross-motion for summary judgment are denied with respect to Claimant’s Labor Law § 241 (6) cause of action as based on an alleged violation of Industrial Code § 23-2.1 (b).

Finally, Claimant alleges that Defendant violated Industrial Code § 23-9.2 (a), which states:
“All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.”

Industrial Code § 23-9.2 (a) has previously been determined to be specific enough to support a Labor Law §241 (6) claim (Piccolo v St. John’s Home for Aging, 11 AD3d 884 [2004]; Tillman v Triou’s Custom Homes, 253 AD2d 254 [1999]). Claimant’s expert opines that this regulation was violated because Claimant attempted to clear the clogged hose while the Supersucker remained on, and that the phrase “at rest” in the regulation means that the Supersucker had to be turned off when being repaired or serviced. Defendant disagrees and argues that the phrase “at rest” merely means that the equipment being repaired or serviced was to be stable. While Defendant correctly notes that the interpretation of a regulation is a question of law for this Court, the meaning of specialized terms such as “at rest” in § 23-9.2 (a) sometimes present a question on which a Court must hear evidence before making its determination (Millard v City of Ogdensburg, 274 AD2d 953 [2000]). Here, a more complete record is necessary as to how the accident occurred and the Court needs to hear the opinions of experts in the construction field as to whether the phrase “at rest” in § 23-9.2 (a) necessarily means that the power-operated equipment referenced in the regulation had to be completely shut-off or merely stable before being repaired or serviced (see Morris v Pavarini Constr., 9 NY3d 47 (2007). Accordingly, both Defendant’s motion and Claimant’s cross-motion for summary judgment with respect to the issue of whether § 23-9.2 (a) of the Industrial Code is applicable and/or was violated and thus, whether it can form the basis of a Labor Law § 241 (6) claim are denied.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s motion M-74223 for summary judgment dismissing all allegations of liability under the common law of negligence and under Labor Law § 200 are granted; and it is further

ORDERED, that Defendant’s motion M-74223 for summary judgment dismissing all allegations of liability under Labor Law § 241 (6) as based on violations of Industrial Code §§ 23-1.5 (a) (b) and (c), 23-1.10 (a), (b) (2) and (b) (3), 23-1.12, 23-1.20, 23-6.1 (k), 23-9.2 (b) and (d) and former § 19 is granted; and it is further

ORDERED, that Defendant’s motion M-74223 for summary judgment dismissing all allegations of liability under Labor Law § 241 (6) as based on an alleged violation of § 23-1.10 (b) (1) of the Industrial Code is granted, and Claimant’s cross-motion CM-74365 for summary judgment under Labor Law § 241 (6) as based on an alleged violation of § 23-1.10 (b) (1) is denied; and it is further

ORDERED, that Defendant’s motion M-74223 and Claimant’s cross-motion CM-74365 for summary judgment under Labor Law § 241 (6) as based on alleged violations of Industrial Code §§ 23-2.1 (b) and 23-9.2 (a) are denied.



March 4, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1].Court Rules require that all papers that are served upon a party must be filed in the office of the Clerk of the Court of Claims (22 NYCRR 206.5 [c]). Claimant does not appear to have filed his Verified Bill of Particulars as required, and is directed to do so. For purposes of this motion, the Bill of Particulars is annexed to Claimant’s motion papers as Exhibit D.
[2]. In his bill of particulars, Claimant alleges a violation of Industrial Code § 23-1.10. In his motion papers, however, he limits his arguments to 23-1.10 (b) (1), apparently abandoning any other provision of this Industrial Code section.
[3]. Former § 19 of the Industrial Code was repealed, effectively October 1, 1997, approximately 5 years before the incident underlying this claim and thus, it has no relevance or application herein.