New York State Court of Claims

New York State Court of Claims
GIZOWKSI v. STATE OF NEW YORK, # 2008-037-024, Claim No. 112634, Motion No. M-74515, Cross-Motion No. CM-74702

Synopsis

Case information

UID: 2008-037-024
Claimant(s): STANLEY A. GIZOWSKI
Claimant short name: GIZOWKSI
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112634
Motion number(s): M-74515
Cross-motion number(s): CM-74702
Judge: JEREMIAH J. MORIARTY III
Claimant's attorney: Brown Chiari, LLP
By: Michael R. Drumm, Esq.
Defendant's attorney: Sliwa & Lane
By: Michael J. Pastrick, Esq. and
Michael T. Coutu, Esq.
Third-party defendant's attorney:
Signature date: June 20, 2008
City: Buffalo
Comments:
Official citation: 66 AD3d 1348 (2009)
Appellate results: Affirmed as Modified
See also (multicaptioned case)

Decision

The following were read and considered with respect to Claimant's motion and Defendant's cross-motion for summary judgment:

1. Notice of motion and supporting affidavit of Michael R. Drumm, Esq. sworn to

January 31, 2008, with annexed Exhibits A-H;

2. Notice of cross-motion and affidavit of Michael J. Pastrick, Esq. sworn to March 19,

2008, with annexed Exhibits 1-9, in support of Defendant's cross-motion and in opposition to Claimant's motion for summary judgment;

3. Defendant's memorandum of law in opposition to Claimant's motion and in support

of Defendant's cross-motion for summary judgment dated March 18, 2008;

4. Affidavit of Michael R. Drumm, Esq. sworn to April 2, 2008, with annexed Exhibit

A, in opposition to Defendant's cross-motion for summary judgment;

5. Claimant's memorandum of law dated April 2, 2008 in opposition to Defendant's

cross-motion and in support of Claimant's motion for summary judgment;

6. Reply affidavit of Michael T. Coutu, Esq. sworn to April 8, 2008, with annexed

Exhibits 10-11, in reply to Claimant's opposition to Defendant's cross-motion for summary judgment;

7. Defendant's reply memorandum of law dated April 8, 2008 in opposition to

Claimant's motion for summary judgment and in support of Defendant's cross-motion for summary judgment.

Filed papers: Claim filed August 14, 2006; Answer filed December 21, 2006.

On January 14, 2005, Claimant, a self-employed carpenter doing business as (d/b/a) Union Builders, was injured when he fell from a "Baker Scaffold" he was using to remove and replace the ceiling of the lobby of a dormitory (Kasling Hall) located at the State University College at Fredonia (SUNY Fredonia). At the time of the accident Claimant was in the process of removing the existing plaster ceiling when a portion of the old ceiling collapsed striking a portion of the scaffold Claimant was about to or was in the process of dismounting, tipping the scaffold and flipping Claimant into the air. Before Union Builders had been retained, employees of SUNY Fredonia allegedly placed one "T" brace in the area of the ceiling which was starting to collapse. Before work began, Claimant and his employees placed approximately 12 additional T braces. Claimant alleges that Defendant, as the owner of the property where the incident occurred, failed to provide him with a safe place to work in violation of 240 (1) and 241 (6) of the Labor Law and common law negligence. Claimant brings a motion for partial summary judgment under 240 (1) of the Labor Law and Defendant cross-moves for summary judgment dismissing all allegations of liability as against the State of New York.

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. Ctr., 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 those principles to the present motions has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence.

Before discussing the merits of the pending motions, a procedural issue needs to be addressed. In its reply papers, Defendant argues that the Court should not consider Claimant's papers served in opposition to its cross-motion for summary judgment because they were allegedly served beyond the time set forth in Rule 2214 (b) of the CPLR. In pertinent part, Rule 2214 (b) states that any reply or answering affidavits in opposition to a cross-motion "shall be served at least one day before" the motion is noticed to be heard. Claimant's opposing papers were mailed on April 2, 2008, seven days before Claimant's motion and Defendant's cross-motion were scheduled to be heard. Thus, even if the five extra days for mailing were added pursuant to Rule 2103 (b) (2), Claimant's papers were timely. Moreover, even if Claimant's papers in opposition to Defendant's cross-motion had been untimely served, Defendant was not prejudiced. In fact, Defendant was able to prepare and serve reply papers in response to Claimant's opposing papers which were served before the motions were heard and which were considered by the Court. Accordingly, the Court has considered Claimant's opposing papers served in opposition to Defendant's cross-motion.

Section 240 (1) of the Labor Law

Labor Law 240 (1) requires contractors and owners to provide safety devices in order to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. . . . Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Claimant would have the Court believe that his accident falls within the purview of 240 (1) because he fell from a scaffold. The problem with this argument is that Claimant is not an ordinary worker at a construction site. Rather, Claimant is the owner of the business known as Union Builders. Claimant is the business and the business is Claimant. He takes no salary from Union Builders and the scaffold and all of the tools being used were owned by his business. Claimant was hired to remove the old ceiling and to put up a new one. Claimant unilaterally decided how to do the work and had taken down or moved bracing from the ceiling immediately before the accident occurred. Defendant argues that Claimant is not entitled to partial summary judgment under 240 (1) because his actions were the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Plass v Solotoff, 5 AD3d 365 [2004], lv denied 2 NY3d 705 [2004]). In Plass, the injured plaintiff, like the injured Claimant herein, conducted his own business and both the injured plaintiff in Plass and the injured Claimant herein provided their own equipment, materials and scaffold, and both unilaterally determined how to accomplish the work. After trial, the Second Department in Plass concluded that the actions of the injured plaintiff therein were the sole cause of his injuries as a matter of law and that he could not recover under 240 (1) or 241 (6) of the Labor Law (see also Arnold v Barry S. Barone Constr. Corp., 46 AD3d 1390 [2007]). Here, Defendant raised an issue of fact as to whether it was the unilateral actions of the injured Claimant which caused the accident. Specifically, questions remain whether it was the removal and/or movement of the bracing by the Claimant before the accident which caused a portion of the ceiling to fall, whether it was the cutting away and removal of a section or sections of the ceiling before the accident by the Claimant that caused a portion of the ceiling to fall, whether Claimant locked the wheels of the scaffold,(2) and whether Claimant was on the scaffold or descending from the scaffold at the time the accident occurred. Unfortunately, neither party submitted expert affidavits to support their respective motions for summary judgment, and, thus, answers to these questions of fact must await trial. Accordingly, Claimant's motion for partial summary judgment and Defendant's cross-motion for summary judgment with respect to 240 (1) of the Labor Law are denied (see Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426 [2007]).

The same questions of fact which preclude summary judgment with respect to 240 (1) of the Labor Law, preclude Defendant's cross-motion for summary judgment with respect to 241 (6), at least with respect to the argument that Claimant's own actions were the sole proximate cause of his injuries. If, however, it is determined after trial that the actions of the Claimant caused his injuries, then the Court will entertain at that time an appropriate motion to dismiss both the 240 (1) and the 241(6) causes of action (see Mulcaire v Buffalo Structural Steel Constr. Corp., id. at 1427; Arnold v Barry S. Barone Constr. Corp., supra at 1391; Plass v Solotoff, supra at 367).

Because Defendant has raised separate bases for its motion for summary judgment with respect to 241 (6) of the Labor Law, the Court will address those issues separately.

Section 241 (6) of the Labor Law

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., 82 NY2d 876 [1993]). 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., 91 NY2d 343 [1998]).

According to Claimant's Answers to Interrogatories (annexed to Attorney Pastrick's March 19, 2008 affidavit as Exhibit 3) and Claimant's First Supplement to Answers to Interrogatories (annexed to Attorney Drumm's April 2, 2008 affidavit as Exhibit A), the State as the owner of the premises violated the following sections of the Industrial Code: 12 NYCRR 23-1.7 (a); 23-1.15; 23-1.16; 23-1.17; 23-3.3; and 23-5.1. Defendant objects to the service of Claimant's First Supplement to Answers to Interrogatories in opposition to Defendant's cross-motion and argues that the Court should not consider regulations 12 NYCRR 23-3.3 and 23-5.1 of the Industrial Code which were alleged for the first time in this unverified supplemental pleading. While the better practice would have been for Claimant to seek leave of the Court to serve supplemental answers to interrogatories to include 23-3.3 and 23-5.1, Defendant has failed to show how it would be prejudiced by allowing Claimant to rely on those regulations at this time, especially when no note of issue has been filed (see Ellis v J.M.G., Inc., 31 AD3d 1220 [2006]; and Harris v Rochester Gas & Elec. Corp., 11 AD3d 1032 [2004]). Moreover, pursuant to CPLR 3101 (h), a party is required to supplement discovery responses under certain circumstances. This obligation includes amendments to interrogatory responses. Such an amendment is exempt from the CPLR Rule 3133 (c) requirement of Court leave that generally governs amendments to answers to interrogatories (see Connors, Practice Commentaries [2005], McKinney's Cons Laws of NY, Book 7B, CPLR C3133:3 at 627). And while interrogatories should be answered in writing under oath by a party with knowledge, here Claimant's counsel, as opposed to Claimant himself, would be in a better position to identify the specific Industrial Code regulations allegedly violated. Finally, because Defendant failed to reject and return Claimant's supplemental responses and proceeded to address the additional Industrial Code regulations cited in the supplemental pleading, the Court will allow the amendment and will consider 23-3.3 and 23-5.1 as well as the code regulations originally cited by Claimant in his initial Answers to Defendant's Interrogatories. Each of these regulations will be addressed seriatim.

12 NYCRR 23-1.7 (a)

Section 23-1.7 entitled "Protection from general hazards" provides in part:

"(a) Overhead hazards. (1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot. [emphasis added]

(2)Where persons are lawfully frequenting areas exposed to falling material or objects but wherein employees are not required to work or pass, such exposed areas shall be provided with barricades, fencing or the equivalent in compliance with this Part (rule) to prevent inadvertent entry into such areas."

As is clearly expressed, 23-1.7 (a) (1) applies only to places normally exposed to falling material or objects. Because the lobby of a dormitory is not a place that is normally exposed to falling material or objects, 23-1.7 (a) (1) does not apply (see Smith v Le Frois Dev., LLC, 28 AD3d 1133 [2006]; Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136 [2005]). Moreover, because Claimant was required to work in or pass through the lobby, subsection 23-1.7 (a) (2) is also inapplicable (Perillo v Lehigh Constr. Group, Inc., id. at 1138).

12 NYCRR 23-1.15, 23-1.16, and 23-1.17

Section 23-1.15 of the Industrial Code is entitled "Safety railing." Section 23-1.16 is entitled "Safety belts, harnesses, tail lines and lifelines" and 23-1.17 is entitled "Life nets." None of these regulations specify when any of these safety devices are required. Rather, they merely set forth how each is to be constructed when it is required. Because there were no railings on the Baker Scaffold being used by Claimant and because he was not wearing a safety belt, harness, tail line, lifeline or life net, none of these regulations is applicable (see Partridge v Waterloo Cent. School Dist., 12 AD3d 1054 [2004]).

12 NYCRR 23-3.3

Section 23-3.3 of the Industrial Code applies to demolition by hand. Claimant raises this regulation for the first time in opposition to Defendant's motion for summary judgment. Unfortunately, Claimant does not specify which subsection or subsections of 23-3.3 he is relying on. Defendant simply argues that this regulation is inapplicable because at some point Claimant had been using a sawsall which it alleges is a mechanical device which brings the situation out of the purview of this regulation. This argument is unpersuasive. Section 23-3.4 of the Industrial Code deals with mechanical methods of demolition. This regulation identifies the swinging weights seen attached to the lines of crane booms, clamshell buckets, power shovels, and bulldozers as being among the types of mechanical devices covered by the mechanical demolition regulation. There is no mention in 23-3.4 of any hand held tool. Accordingly, the Court denies Defendant's motion for summary judgment on the grounds that there are questions of fact as to whether any specific subsection of 23-3.3 is applicable and was violated. There also remains a significant question as to whether the removal of a dormitory ceiling falls within the definition of "demolition work" set forth in 12 NYCRR 23-1.4 [b] [16]) and thus within the purview of 23-3.3 (see Quinlan v City of New York, 293 AD2d 262 [2002]; Zuniga v Stam Realty, 169 Misc 2d 1004 [1996], affd 245 AD2d 561 [1997], lv denied 91 NY2d 813 [1998]; Bruton v State of New York, 5 Misc 3d 1006 (A) [2004]). This issue was neither raised nor addressed by either party and must await resolution at trial.

12 NYCRR 23-5.1

Claimant also raises Industrial Code regulation 23-5.1 for the first time in his First Supplement to Answers to Interrogatories served in opposition to Defendant's cross-motion for summary judgment. Once again, Claimant neglects to specify the subsection or subsections he intends to rely on at trial. From the arguments raised by Claimant in his memorandum of law dated April 2, 2008, however, it appears that Claimant is relying on 23-5.1 (b) and 23-5.1 (j) (1). Regulation 23-5.1 is entitled "General provisions for all scaffolds." Immediately, the question arises as to whether this regulation and any of its subsections are specific enough to form the predicate of a 241 (6) cause of action. The Appellate Divisions appear to be split on this issue. In addition, there are questions of fact as to the applicability of 23-5.1 (b) and/or 23-5.1 (j) to the facts of this case, and whether a violation of either subsection was a proximate cause of Claimant's injuries (see Fisher v WNY Bus Parts, Inc., 12 AD3d 1138 [2004]). Finally, as Defendant notes, 23-5.1 (j) applies only to scaffolds over seven feet high. While Defendant surmises that the baker scaffold being used by the Claimant was not seven feet tall, there is no evidentiary proof in the record to support this conjecture. These questions of fact preclude summary judgment.

Common Law Negligence

As a landowner, the State owes a duty to maintain its property "in a reasonably safe condition, considering all the circumstances, including the purpose of the person's presence on the land and the likelihood of injury" (Christmann v Murphy, 226 AD2d 1070 [1996], lv denied 89 NY2d 801 [1996]). The State cannot be held liable, however, for injuries sustained by a claimant due to a dangerous condition that the claimant had undertaken to eliminate (see Contrera v Gesher Realty Corp., 1 AD3d 111 [2003]; Carrion v Lewmara Realty Corp., 222 AD2d 205 [1995]). Accordingly, Defendant's motion for summary judgment with respect to Claimant's common law negligence cause of action is granted.(3)

Based on the foregoing, it is hereby

ORDERED, that Claimant's motion M-74515 for partial summary judgment with respect to his 240 (1) cause of action is denied; and it is further

ORDERED, that Defendant's cross-motion CM-74702 for summary judgment dismissing Claimant's common law negligence cause of action and Claimant's Labor Law 241 (6) cause of action as based on alleged violations of Industrial Code regulations 12 NYCRR 23-1.7 (a), 23-1.15, 23-1.16 and 23-1.17 is granted; and it is further

ORDERED, that Defendant's cross-motion CM-74702 for summary judgment dismissing Claimant's Labor Law 240 (1) cause of action and Claimant's 241 (6) cause of action as based on alleged violations of Industrial Code regulations 12 NYCRR 23-3.3 and 23-5.1 is denied.

June 20, 2008

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims


2. During his deposition, Claimant testified that it was his standard practice to lock the wheels in place, but that he didn't "remember exactly doing it that time that day." (p. 58, Defendant's Exhibit 4).

3. At various times in their motion papers, both Claimant and Defendant appear to set forth arguments as if Claimant had asserted a Labor Law 200 cause of action. No such cause of action is asserted in the claim. Moreover, in its interrogatory number 23, Defendant inquired if Claimant was claiming a violation of Labor Law 200. Claimant responded that 200 was "Not applicable."