New York State Court of Claims

New York State Court of Claims
TRONOLONE v. NEW YORK STATE DEPARTMENT

OF TRANSPORTATION

, # 2008-037-044, Claim No. 111315, Motion No. M-75002

Synopsis

Claim dismissed as scrap plywood used as a base for a temporary road sign did not constitute a working surface within the protective purview of 23-1.7 (d) of the Industrial Code (12 NYCRR 23-1.7 [d]).

Case information

UID: 2008-037-044
Claimant(s): CAESAR TRONOLONE AND
KIMBERLY TRONOLONE
Claimant short name: TRONOLONE
Footnote (claimant name) :
Defendant(s): NEW YORK STATE DEPARTMENT
OF TRANSPORTATION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111315
Motion number(s): M-75002
Cross-motion number(s):
Judge: JEREMIAH J. MORIARTY III
Claimant's attorney: Cantor, Lukasik, Dolce & Panepinto, P.C.
By: Mark H. Cantor, Esq.
Defendant's attorney: Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC
By: Natalie A. Grigg, Esq. and
R. Anthony Rupp III, Esq.
Third-party defendant's attorney:
Signature date: January 22, 2009
City: Buffalo
Comments:
Official citation: 71 AD3d 1488 (2010)
Appellate results: Affirmed
See also (multicaptioned case)

Decision

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

1. Notice of motion and supporting affidavit of Natalie A. Grigg, Esq. sworn to May

19, 2008, with annexed Exhibits A-H;

2. Defendant's supporting memorandum of law dated May 19, 2008;

3. Opposing affidavit of Ernest J. Gailor, P.E., sworn to July 11, 2008, with annexed

Exhibit;

4. Opposing affidavit(1)

of Mark H. Cantor, Esq. dated July 14, 2008;

5. Claimant's opposing memorandum of law dated July 14, 2008;

6. Supporting affidavit of John P. Coniglio, PhD, CSP, CHMM, RPIH, CHCM,

sworn to August 29, 2008, with annexed Exhibit A;

7. Reply affidavit of R. Anthony Rupp III, Esq. sworn to September 8, 2008;

8. Defendant's further supporting memorandum of law dated September 8, 2008;

9. Supplemental affirmation of Mark H. Cantor, Esq. in opposition to Defendant's

motion dated November 21, 2008, with annexed Exhibits A-B;

10. Supplemental affidavit of R. Anthony Rupp III, Esq. in support of Defendant's

motion sworn to December 5, 2008, with annexed Exhibit A.

Filed papers: Claim filed September 1, 2005; Answer filed October 17, 2005.

On or about November 29, 2004,(2) Claimant Caesar Tronolone(3) was injured while employed as a general foreman by A & L, Inc., the general contractor on the Route 130 (Broadway Ave.) reconstruction project. At the time of the accident, the project was winding down and the Claimant and his coworkers were in the process of taking down the temporary road signs that had been placed in the area between the sidewalk and the curb during the course of the project. Because of the softness of the topsoil and sod in the area, Claimant and his coworkers had used scrap plywood as bases for the temporary road signs and had placed several twenty pound sandbags on the horizontal feet of the temporary signs to further stabilize and anchor them. Claimant alleges that it was drizzling and that his injuries occurred after he had removed the anchoring sandbags and was in the process of walking the 14-foot-tall temporary road sign down to the ground. As a coworker grabbed the bottom of the sign, Claimant allegedly slipped on a section of wet or muddy plywood causing him to loose his balance. Claimant alleges that Defendant negligently failed to provide him with a safe place to work in violation of common law negligence principles and in violation of 200 and 241 (6) of the Labor Law. Defendant now moves for summary judgment dismissing all allegations of liability against it. During oral argument, Claimant's counsel stated that Labor Law 200 and 241 (6) as premised on an alleged violation of 23-1.7 (e) of the Industrial Code (12 NYCRR 23-1.7 [e]) were withdrawn. Accordingly, this decision will address the only remaining issue which is Labor Law 241 (6) as based on an alleged violation of 23-1.7 (d) of the Industrial Code (12 NYCRR 23-1.7 [d]).

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 this claim has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence. Every reasonable inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the Claimant.

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., 81 NY2d 494 [1993]). 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]).

The only remaining Industrial Code regulation upon which a Labor Law 241 (6) cause of action may be based is 12 NYCRR 23-1.7 (d) entitled "Slipping hazards" which states:

"[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."

Section 23-1.7 (d) of the Industrial Code has been held to be sufficiently specific to sustain a Labor Law 241 (6) claim (see Ramski v Zappia Enters., 229 AD2d 990 [1996]). Defendant argues that regulation 23-1.7 (d) is inapplicable to the facts of this case because the water and mud found on the plywood base was not a foreign substance contemplated by the regulation and because the area in which Claimant's injury occurred did not qualify as a "floor, passageway, walkway, scaffold, platform or other elevated working surface" contemplated by the regulation.

Defendant's first argument is based in part on Scarupa v Lockport Energy Assoc., 245 AD2d 1038 (1997), in which the Fourth Department held that a worker's injuries that occurred when he fell on muddy ground located in a common area or open yard did not fall within the purview of 23-1.7 (d) of the Industrial Code. Recently, however, the First Department held in Conklin v Triborough Bridge and Tunnel Auth., 49 AD3d 320 [2008], that injuries sustained when a worker slipped on a muddy ramp which provided access to different working levels did fall within the protection of 23-1.7 (d). The incident in Scarupa occurred in an open, common area, while the incident in Conklin occurred on a working surface.

Defendant argues that the plywood base upon which Claimant slipped does not constitute a "working surface" within the purview of the regulation. Claimant argues that the plywood base does fall within the regulation and cites Ventura v Lancet Arch, 5 AD3d 1053 (2004). In Ventura, the Fourth Department held in part that the trial court properly denied to Defendant summary judgment as the plywood on which the plaintiff slipped constituted a platform under regulation 23-1.7 (d). While the facts presented by the Fourth Department in Ventura are minimal, Claimant attached to his submissions a copy of the record on appeal in Ventura (see Exhibit B to Attorney Cantor's supplemental affirmation dated November 21, 2008). According to deposition testimony in Ventura, the plywood platform at issue therein was used to keep a mortar mixer off the grass and as a walkway. In fact, a coworker was responsible for continually mixing the mortar for the bricklayers, taking care of the mixing machine and for cleaning the mud and slurry that would spill onto the plywood during the mixing process. The trial court and the Fourth Department had sufficient evidence to conclude that the plywood being used in Ventura as a base for the mixer and as a working surface fell within the protective purview of 23-1.7 (d).

In the present case, however, the scrap plywood was being used solely to stabilize a temporary road sign that had a tendency to wiggle and blow over if merely placed on the unstable sod located between the curb and the sidewalk. There was no testimony nor evidence presented to even suggest that the scrap plywood was used for anything other than to stabilize the temporary sign. Defendant met its prima facie burden of entitlement to summary judgment by demonstrating that the scrap plywood at issue did not constitute an elevated working surface within the protective purview of 23-1.7 (d) of the Industrial Code (Monterroza v State Univ. Constr. Fund, 56 AD3d 629 [2008]). Claimant's expert, Ernest J. Gailor, P.E., opined that the scrap plywood being used as a base for the temporary road sign was unsafe and that proper procedures for taking down the road sign were not being used. Nothing in his affidavit, however, even suggests that the scrap plywood base constituted a working surface within the protective purview of Industrial Code regulation 23-1.7 (d). Claimant failed to raise a triable issue of fact and, thus, his reliance on 23-1.7 (d) is unavailing because his injuries simply did not occur on a "floor, passageway, walkway, scaffold, platform or other elevated working surface" contemplated by the regulation (see Hertel v Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259 [2008]; Farrell v Blue Circle Cement, Inc., 13 AD3d 1178 [2004]; Lawyer v Hoffman, 275 AD2d 541 [2000]). Accordingly, Defendant's summary judgment motion to dismiss Claimant's remaining Labor Law 241 (6) cause of action as based on an alleged violation of 23-1.7 (d) of the Industrial Code (12 NYCRR 23-1.7 [d]) is granted, and claim no. 111315 is hereby dismissed.

January 22, 2009

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims


1. While Mr. Cantor's opposing papers are entitled "affidavit," they are actually styled in the form of an attorney affirmation.

2. The claim (Defendant's Exhibit A), the Claimant's Bill of Particulars (Defendant's Exhibit C) and the Workers' Compensation C-3 report (Defendant's Exhibit E) all indicate that the incident occurred on November 29, 2004. An insurance claim report (Defendant's Exhibit H) indicates an incident date of November 30, 2004. During his deposition (Defendant's Exhibit G), Claimant testified that the incident could have occurred on December 1, 2004.

3. Henceforth, references to Claimant refer to Caesar Tronolone as the claim of Kimberly Tronolone is derivative.