TAYLOR v. STATE OF NEW YORK, #2008-040-034, Claim No. 111525, Motion Nos.
Both sides move for summary judgment on a Labor Law case where claimant fell
from a ladder while climbing it.
Claimant’s motion relating to Labor Law §§ 240(1) and 241(6)
denied. Defendant’s motion relating to Labor Law §§ 240(1) and
241(6) denied. Questions of fact exist. Defendant’s motion to dismiss
causes of action asserting violation of Labor Law § 200 and common law
negligence granted and those causes of action dismissed.
|JAMES TAYLOR and JUNE TAYLOR
1 1.Caption amended to reflect the State of New York as the proper
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. McCARTHY
SULLIVAN PAPAIN BLOCK
McGRATH & CANNAVO P.C.
By: Matthew J. Jones, Esq. and Brian J. Shoot, Esq.
McDERMOTT & RADZIK, LLP
By: Daniel G.
Esq. and Carolyn Elizabeth Bundy, Esq.
May 22, 2008
See also (multicaptioned
For the reasons set forth below, Defendant’s motion for summary judgment
seeking dismissal of the Claim is granted as to the causes of action asserting a
violation of Labor Law § 200 and common-law negligence and otherwise
denied. Claimants’ motion for partial summary judgment on the issue of
liability pursuant to New York Labor Law §§ 240(1) and 241(6) is
denied in its entirety.
An Amended Claim was filed with the Clerk of the Court on November 7, 2005
(“Claim”) by Claimants James Taylor and June
The Claim asserts causes of action
under the provisions of the Labor Law enumerated above, as well as common-law
negligence (Claim, ¶ 67). Defendant’s Verified Answer to the Amended
Claim was filed on December 14, 2005. Thereafter, Defendant filed its Motion
for Summary Judgment to Dismiss Claimants’ Amended Claim in its entirety
(“Defendant’s Motion”) with the Clerk of the Court on October
11, 2007. On October 15, 2007, Claimants filed their own Motion for Summary
Judgment pursuant to Labor Law §§ 240(1) and 241(6)
(“Claimant’s Motion”). Each side also submitted reply papers
in support of their motion and in opposition to the competing motion of their
The Claim alleges that Claimant was an employee of Phoenix Marine Corp.
(“Phoenix”), a contractor retained by the State to renovate the
Meadowbrook Drawbridge (“Project”) located at or near Sloop Channel
at or near Merrick, New York. It is alleged that, on July 29, 2005 at about
7:30 a.m., Claimant was injured while “performing certain work, labor and
services upon the Meadowbrook Drawbridge ... as an employee” of Phoenix
(Claim, ¶¶ 6, 7). It is further alleged that Claimant’s
injuries were sustained as a result of Defendant’s failure to properly
secure a ladder (Claim, ¶ 11). Claimant asserts that: he was attempting to
ascend from a mat that floated on the surface of the water to the deck of the
work barge; he fell off a wooden ladder that slipped out from underneath him and
which slid sideways; the feet of the ladder were on top of the mat; the ladder
rails rested against the edge of the barge deck; and the ladder was attached to
the barge by a single rope (Claim, ¶ 13; Affirmation of Matthew J. Jones
attached to Claimant’s Motion [“Jones Affirmation”],
¶¶ 9, 13; see Ex. F attached to Claimant’s Motion,
transcript of examination before trial [“EBT”] of Claimant held on
August 17, 2006 [see also Ex. 11 attached to Defendant’s Motion]
[“Taylor EBT”], pp. 49-50; see Ex. N attached to
Claimant’s Motion, Accident Report [“Accident Report”]).
Defendant argues that Claimant is not a member of the class of workers covered
by the Labor Law because he was not a person “so employed” as an
“enumerated worker” under Labor Law §§ 200, 240(1) and
241(6). Defendant asserts that Claimant was engaged to work as a boat captain
whose sole job was to ferry State inspectors to and from the Project and that
Claimant was not retained as a construction worker. Moreover, Defendant
maintains that the State exercised no “supervisory control” over the
work being performed pursuant to the Project (Defendant’s Memorandum of
Law in Support of Defendant’s Motion for Summary Judgment to Dismiss
Claimant’s Amended Claim [“McDermott Memorandum”], pp. 1, 3,
Summary judgment is a drastic remedy to be granted sparingly and only where no
material issue of fact is demonstrated in the papers related to the motion
(see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965];
Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd
26 AD2d 729 [3d Dept 1966]). “The proponent of a summary judgment motion
must make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of fact from the
case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853
; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ;
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ).
“Failure to make such prima facie showing requires a denial of the motion,
regardless of the sufficiency of the opposing papers” (Alvarez v
Prospect Hosp., 68 NY2d 320, supra at 324; see Winegrad v
New York Univ. Med. Center, 64 NY2d 851, supra at 853).
Section 240(1) of the Labor Law imposes a duty upon all contractors and
property owners and their agents:
[I]n the erection, demolition, repairing, altering, painting, cleaning or
pointing of a building or structure [to] furnish or erect, or cause to be
furnished or erected for the performance of such labor, scaffolding, hoists,
stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and
other devices which shall be so constructed, placed and operated as to give
proper protection to a person so employed.
“Labor Law § 240(1) applies both to ‘falling worker’ and
‘falling object’ cases” (Narducci v Manhasset Bay
Assoc., 96 NY2d 259, 267 ). It covers only those special risks,
however, that are “associated with elevation-related hazards” and
not “any and all perils that may be connected in some tangential
way with the effects of gravity” (Ross v Curtis-Palmer Hydro-Elec.
Co., 81 NY2d 494, 500-501 [emphasis in original]; Rocovich v Consolidated
Edison Co., 78 NY2d 509, 514 ). A worker injured in such an
elevated-related activity must establish two elements: (1) a violation of the
statutory duty to provide and properly place and operate safety devices so as to
provide proper protection; and (2) that the absence of such safety devices, or
some defect in those that were provided, was a contributing factor in the
worker’s injury (Blake v Neighborhood Hous. Servs. of N.Y. City, 1
NY3d 280, 287 ; Felker v Corning Inc., 90 NY2d 219, 224 ).
It is settled that Section 240(1) must be construed liberally, the duty is
nondelegable, and absolute liability is imposed for its breach, regardless of
any negligence on the part of the injured worker (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, supra at 500; Rocovich v
Consolidated Edison Co., 78 NY2d 509, supra at 513). At the same
time, a defendant upon whom that duty is imposed is not thereby rendered an
insurer (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,
supra at 286). Thus, “[n]ot every worker who falls at a
construction site, and not any object that falls on a worker, gives rise to the
extraordinary protections of Labor Law § 240 (1)” (Blake v
Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, supra at 288,
quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, supra at
267). Defendant will not be liable if there is no evidence of a statutory
violation and Claimant’s own negligence is the sole factor in the events
that resulted in his injury (Blake v Neighborhood Hous. Servs. of N.Y.
City, 1 NY3d 280, supra at 290).
Based upon the evidence submitted by both parties in support of and in
opposition to the respective motions regarding this cause of action, the Court
concludes that material questions of fact exist which preclude the granting of
summary judgment to either party.
A main issue of contention between the parties is what Claimant’s job was
on the Project. Claimant asserts that he was “lead engineer” and a
member of a team engaged in construction activities that was protected by Labor
Law § 240(1). Defendant asserts that Claimant was hired by Phoenix as a
boat operator, was not a member of a construction team, and was not primarily
involved in construction work, nor was he hired by Phoenix to do so.
Defendant submitted an affidavit from John A. Keeley, President, owner and sole
stockholder of Phoenix (Keeley Affidavit, ¶ 1). The repair work was being
conducted primarily from a floating 90-foot by 30-foot steel deck barge
(“work barge”) located on the south side of the Project (id.
¶ 8). Employees of Phoenix and the New York State Department of
Transportation (“DOT”) generally reached the work barge via boat
(id. ¶ 9). Access to the work barge was usually from a ladder
secured to the deck atop a floating mat leading up to the barge (id.
¶ 10). Mr. Keeley averred that Claimant was hired by Phoenix as a boat
captain to transport DOT inspectors to and from the work barge on a 26-foot
boat, which was owned by Phoenix, and it was Claimant’s sole
responsibility as an employee of Phoenix, to transport the DOT inspectors
(Keeley Affidavit, ¶¶ 13 and 14). Scott Franzese, DOT’s
Engineer in Charge (“EIC”) of the Project, testified, at his EBT
held on October 17, 2006, that Claimant operated the inspection boat and
transported inspectors on the job site (Ex. 12 attached to Defendant’s
Motion [see also Ex. G attached to Claimant’s Motion]
[“Franzese EBT”], p. 42).
Mr. Keeley further averred that Claimant was not involved in any way with the
actual work being performed on the work barge in connection with the Project
(Keeley Affidavit, ¶ 16). Mr. Keeley stated that Claimant was hired by
Phoenix as a boat captain through the union hall for the International Union of
Operating Engineers, Local 138 (“Local 138”) (Keeley Affidavit,
¶ 12). Defendant asserted Claimant testified at his EBT that, as lead
engineer for the Union, he took care of time sheets, made sure the hours were
correct and kept an eye on all the operators (McDermott Memorandum, p. 4; see
Taylor EBT, p. 6). Mr. Keeley averred that Claimant did not have an office,
or work to perform, on the work barge and that the only reason he would have had
to go up onto the work barge in connection with his employment by Phoenix would
have been to use the restroom or attend a safety meeting (Keeley Affidavit,
¶¶ 17-18). Mr. Keeley further averred that Claimant’s
responsibilities as lead engineer were separate and distinct from his employment
with Phoenix and were performed exclusively for the benefit of Local 138 (Keeley
Affidavit, ¶ 20). Mr. Keeley further averred that, in connection with his
employment as boat captain, Claimant had no supervisory responsibilities on
behalf of either Phoenix or New York State (id. ¶ 19).
Thus, Defendant asserts that an inquiry into the “type of work [Claimant]
was performing at the time of injury” (Joblon v Solow, 91 NY2d 457,
465 ) will reveal that he was not engaged in any of the enumerated
activities required for protection under Section 240(1) at the time of his
alleged injury (Schroeder v Kalenak Painting & Paperhanging, Inc., 6
Misc 3d 1013(A), [Sup Ct, Monroe County 2005], affd 27 AD3d 1097 [4th
Dept 2006], affd 7 NY3d 797 ; McDermott Memorandum, p. 9).
In opposition to the State’s motion to dismiss, Claimant asserts that he
was not hired strictly as a boat captain, but as a lead engineer, and was paid
at that rate on Phoenix’s payroll records (Taylor’s Affidavit in
Opposition [“Taylor Affidavit”], ¶¶ 2, 5, 6 [Ex. A
attached to Affirmation of Brian J. Shoot in Opposition to Defendant’s
Motion (“Shoot Affirmation”)]; see Ex. C attached to Shoot
Affirmation, Phoenix payroll records). Contrary to Mr. Keeley’s assertion
that Claimant was not involved in any way with the work performed in connection
with the Project, Claimant states that his work as lead engineer included many
construction-related activities on the work barge (Taylor Affidavit,
Claimant also submitted the affidavit of William Pettit, who was employed by
Phoenix as an operating engineer on the Project (Ex. B attached to Shoot
Affirmation [“Pettit Affidavit”], ¶ 2). Mr. Pettit averred that
there were two “shanties” located on the deck of the work barge;
that Claimant shared one with the DOT inspectors; that Claimant would report to
his desk located within the shanty to perform administrative work (id.
¶ 8); that, after performing that work, he would then inspect/maintain
equipment and assist the operating engineers in the performance of their duties
on the barge (id. ¶ 9). Mr. Pettit further stated that Claimant
“spent more than half his working hours on the barge acting as master
mechanic/[l]ead [e]ngineer working directly in or assisting in construction
related activities” (id. ¶ 13).
Claimant contends that, pursuant to the collective bargaining agreement Phoenix
signed with Local 138, as lead engineer he was in charge of the maintenance and
repair of all equipment and required to operate machines when no operating
engineer was available to do so (Claimants’ Memorandum of Law in
Opposition to Defendant’s Motion for Summary Judgment [“Shoot
Memorandum”], pp. 12-13; see Ex. E attached to Shoot Affirmation,
Art. VIII, § 2[x]). The Project could not proceed without a lead engineer
and this made him “integral and necessary” (see Martinez v City
of New York, 93 NY2d 322, 326 ) to the performance of the construction
work. Therefore, in Claimant’s view, Defendant’s assertion that
Claimant was not integral and necessary must fail (Shoot Memorandum, p.
Claimant also asserts that, even if the facts as posited by Defendant are true,
he still would be entitled to the protections of Labor Law §§ 240(1)
and 241(6) (Shoot Memorandum, pp. 6-7). He asserts that the Court of Appeals
decision in Schroeder v Kalenak Painting & Paperhanging, Inc. (7 NY3d
797 ) conveyed that workers who do not personally perform any statutorily
enumerated work are, nonetheless, entitled to the protection of the Labor Law if
their assigned activities are part of a larger renovation project subject to
coverage under the statute (Shoot Memorandum, pp. 4-5).
He also asserts that, in Prats v Port Auth. of N.Y. & N.J. (100 NY2d
878, 882 ), a case involving a worker performing a non-enumerated activity
at the moment he fell from a ladder, the Court of Appeals held that where the
worker was a member of a team that undertook an enumerated activity under a
construction contract, the worker is entitled to the protection of the Labor Law
(see Aguilar v Henry Mar. Serv., Inc., 12 AD3d 542, 544 [2d Dept
2004]; Shoot Memorandum, pp. 20-23).
Thus, the Court finds there are material questions of fact about the nature and
scope of duties of Claimant’s job. Questions about whether or not a
particular job or activity is covered by the statute “must be determined
on a case-by-case basis, depending on the context of the work” (Prats v
Port Auth. of N.Y. & N.J., 100 NY2d 878, supra at 883). In this
instance, it is unclear whether Claimant was climbing the ladder in his capacity
as a member of the construction team, or whether it was part of “a
separate phase easily distinguishable from other parts of the larger
construction project” (id. at 881). Indeed, a question may exist
as to whether or not “a bright line” (Beehner v Eckerd Corp.,
3 NY3d 751, 752 ) can be drawn in this Claim that would separate
Claimant’s covered work from other, unrelated and uncovered activity such
as, as Defendant has suggested, a task exclusively related to Claimant’s
responsibilities on behalf of Local 138. In that regard, the Court notes that
Claimant’s deposition testimony was that he had worked for Local 138 as a
lead engineer for seven years as of 2006 and that his position on the Project
was as “lead engineer for” Local 138
(Taylor EBT, pp. 5-6, 19 [emphasis added]). He said that, aside from
his responsibilities supervising the other engineers in his capacity as lead
engineer, his job for Phoenix was to be “in charge of operating the boat
for the inspectors” (id. p. 21).
Turning next to the safety device in this Claim, the parties agree that there
was a ladder. They disagree, however, about how the rope was attached to the
ladder, and whether that rope attachment properly secured the ladder so as to
furnish proper protection.
The Phoenix Health and Safety Plan for the Project states, in pertinent part:
“[w]hen using ladders on ... work floats, the ladder must be tied off or
someone must be holding the ladder to avoid side sliding [due] to the action of
waves or wakes;” “[l]adders must be inspected before each and every
use;” and “ [e]very ladder must be equipped with tie-off rope and
non-skid safety feet” (Ex. O attached to Claimant’s Motion, §
4.1.20). Edionwe Johnson was the Phoenix safety manager on the Project. He
drafted Section 4.1.20 of the Health and Safety Plan and confirmed that it was
in effect on the day of the accident (Ex. J attached to Claimant’s Motion,
EBT of Edionwe Johnson held on December 13, 2006 [see also Ex. 16
attached to Defendant’s Motion] [“Johnson EBT”], p. 17).
Claimant asserts that: the ladder was improperly secured to the barge by a
single rope tied around the second rung from the bottom of the ladder; and the
rope was not secured to the side rails of the ladder to prevent sideways
movement (Jones Affirmation, ¶ 13; see Taylor EBT, p. 48; Ex. H
attached to Claimant’s Motion, EBT of John A. Keeley held on December 13,
2006 [see also Ex. 15 attached to Defendant’s Motion]
[“Keeley EBT”], pp. 54-56; Ex. L attached to Claimant’s
Motion, EBT of James Posillico held on December 18, 2006 [“Posillico
EBT”], p. 59). Claimant also noted that the written accident report by
Phoenix Safety Engineer Edionwe Johnson cited the “immediate cause”
of the accident was that the “ladder moved sideways” and prescribed
as the following “immediate corrective actions” that the
“ladder must be properly secured to avoid sideways movement” (Jones
Affirmation, ¶ 16; see Accident Report). Claimant asserted that Mr.
Johnson’s investigation “determined that no one held the ladder for
Claimant while he was ascending” (id.).
Claimant argues that a fall from a ladder that is not adequately secured and
which slips from under the worker while he or she is working on it entitles the
worker to recovery under Labor Law § 240(1) (Lesisz v Salvation
Army, 40 AD3d 1050, 1051 [2d Dept 2007]; Boe v Gammarati, 26 AD3d 351
[2d Dept 2006]; Camacho v 101 Ellwood Tenants Corp., 289 AD2d 102 [1st
Dept 2001]; Jones Affirmation, ¶ 24; Shoot Memorandum, p. 16).
In opposition to Claimant’s motion, Defendant asserts that questions of
fact exist as to whether the ladder from which Claimant allegedly fell was
properly secured and whether Claimant’s own actions were the sole
proximate cause of his injuries (Defendant’s Memorandum of Law in
Opposition to Claimant’s Motion [“McDermott Memorandum in
Opposition”], pp. 11, 14).
Claimant stated that the ladder usually was tied to the barge with two or three
ropes, one (or sometimes two) at the top of the ladder in order to keep it from
moving from side to side, and a another rope attached toward the bottom of the
ladder in order to keep it from sliding away from the barge and into the water
(Taylor EBT, pp. 73-74, 77). On the day of his accident, however, Claimant
stated that the top rope was missing and the only rope was tied to the
ladder’s second rung from the bottom and attached to the side of the work
barge (Taylor EBT, pp. 48, 77-78).
Claimant referenced the EBT of Israel Chimezie, one of the State Field
Inspectors present on the day of Claimant’s accident, for the proposition
that a rope should have been tied to both side rails as well as a rung of the
ladder in order to the properly secure the ladder against the risk of side sway
and slippage (Jones Affirmation, ¶ 15).
By contrast, Mr. Johnson said that ladders could be tied to barges in several
different configurations (Johnson EBT, p. 45). Mr. Chimezie himself testified
that sometimes only one rope was used to secure the ladder, attached near the
top of the ladder (Ex. I attached to Claimant’s Motion, EBT of Israel
Chimezie held on October 18, 2006 [see also Ex. 13 attached to
Defendant’s Motion [“Chimezie EBT”], pp. 59-63). Mr. Keeley
said that one rope was attached near a top rung of the ladder the day of the
accident (Keeley EBT, pp. 54-56). In fact, he maintained that he could not
recall an instance when the ladder was not secured in that manner (id. p.
71). Defendant’s engineer specializing in marine construction, Hendrik
van Hemmen, asserted that “this ladder set-up [in which the ladder was
secured to the barge by a rope tied either around one rung or two side rails
near the top of the ladder] was proper and customary in the [marine
construction] industry” (van Hemmen Affidavit, ¶¶ 8(d), 9, 11).
It appears that the ladder had typical safety shoes or treads on its feet
(Johnson EBT, p. 39; Keeley EBT, p. 53; Posillico EBT, p. 18).
Several people agreed that the mat moves as it floats on the water. Thus, as
Mr. Chimezie noted, the bottom of the ladder could move when it was unattended,
so the feet could be adjusted if necessary (Chimezie EBT, p. 95; see Ex.
K attached to Claimant’s Motion, EBT of Isaac Aliyu held on October 18,
2006 [see also Ex. 14 attached to Defendant’s Motion (“Aliyu
EBT”)], p. 79). Claimant stated, however, that water conditions at the
time of his accident were “[n]othing out of the ordinary ... a standard
day” (Taylor EBT, pp. 50-51). Isaac Aliyu, another State field inspector
present on the date of Claimant’s accident agreed that conditions were
calm (Aliyu EBT, p. 80) and Mr. Posillico recalled that the water was
“flat” (Posillico EBT, p. 22).
Claimant stated that the three State field inspectors he ferried to the work
barge that morning all ascended the ladder only a few minutes before him and
went up onto the barge deck (Taylor EBT, p. 44), apparently without incident.
Mr. Aliyu believed that he was the first to ascend the ladder. He stated that
the ladder was in position, inclined against the work barge at a 60
angle, with the feet of the ladder centered on the mat (Aliyu EBT, pp. 62-65).
Before climbing, he shook, or felt, the ladder with one hand to make sure it was
steady (id. pp. 74-76). He did not recall that the ladder moved as he
climbed it (id. pp. 79-80).
Mr. Keeley said that it was the duty of anyone using the ladder to check to
make sure that its feet were firmly secure and in place (Keeley EBT, pp. 59-60).
A number of other people used the ladder prior to the accident. Mr. Johnson had
gone up and down the same ladder a half dozen times the day before the accident
(Johnson EBT, pp. 42-43). Mr. Posillico and about ten other people went up the
ladder earlier on the morning of the accident (Posillico EBT, pp. 20-21). After
the accident, Tom Parkinson, another State field inspector, came back down the
same ladder to render assistance (Taylor EBT, p. 55). Mr. Posillico found the
ladder hanging in a vertical position against the side of the barge, and also
climbed down it that way to help Claimant (Posillico EBT, p. 39). Mr. Keeley
also stated that he climbed up the ladder after Claimant was evacuated to the
hospital (Keeley EBT, p. 47).
The Court finds there are material questions of fact about how the rope was
attached to the ladder and whether the ladder was properly secured, or whether
the accident was solely the result of some action by Claimant. Therefore, both
Claimant’s and Defendant’s motions for summary judgment with respect
to the Labor Law § 240(1) causes of action are denied.
Labor Law § 241(6) provides:
(6) All areas in which construction, excavation or demolition work is being
performed shall be so constructed, shored, equipped, guarded, arranged, operated
and conducted as to provide reasonable and adequate protection and safety to the
persons employed therein or lawfully frequenting such places.
The statute “imposes a nondelegable duty of reasonable care upon
owners and contractors ‘to provide reasonable and adequate protection and
safety’ to persons employed in, or lawfully frequenting, all areas in
which construction, excavation or demolition work is being performed”
(Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348  [emphasis in
original]; see Comes v New York State Elec. & Gas Corp., 82 NY2d 876,
878 ) and to comply with the specific safety rules and regulations
promulgated by the Commissioner of the Department of Labor.
A necessary predicate to a Labor Law § 241(6) claim is that the regulation
invoked must mandate compliance with “concrete specifications” such
as a “specific, positive command” (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, supra at 504-505). Of course, the
specific command must apply to the circumstances of the claim (Ferrero v Best
Modular Homes, Inc., 33 AD3d 847, 851 [2d Dept 2006], lv dismissed 8
NY3d 841 ).
Allegations that Defendant violated the general standard pronounced in Labor
Law § 241(6), or a similarly general descriptive provision contained in
regulation, simply restate the common law’s general duty of care and will
not support a cause of action premised upon a breach of a nondelegable duty
under § 241(6) (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,
supra at 504).
Unlike Labor Law § 240(1), Section 241(6) does not impose absolute
liability. Even where a violation of a concrete specification under Section
241(6) is asserted, it provides merely some evidence of negligence.
Contributory and comparative negligence are valid defenses to a Section 241(6)
claim (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, supra at
349-350; Allen v Cloutier Constr. Corp., 44 NY2d 290, 298-299
Claimant asserts that Defendant violated two “separate
‘specific’ sections of the New York State Industrial Code, found at
Rule 23 of the Board of Standards and Appeals, 12 NYCRR 23-1.7(d) and 12 NYCRR
23-1.21(b)(4)(ii)” (Jones Affirmation, ¶ 31). Subsequently, Claimant
added a third provision, 12 NYCRR 23-1.21(b)(4)(iv) (Reply Affirmation of
Matthew J. Jones in support of Claimant’s Motion [“Jones Reply
Affirmation”], ¶¶ 19-21).
12 NYCRR 23-1.7(d) provides for the removal, sanding or covering of ice, snow,
water, grease and any other foreign substance which may cause slippery footing
from any floor, passageway, walkway, scaffold, platform or other elevated
working surface. It has been held that 12 NYCRR 23-1.7(d) contains specific
directives that are sufficient to sustain a cause of action under Labor Law
§ 241(6) (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,
supra at 350-351; Whalen v City of New York, 270 AD2d 340, 342 [2d
Claimant further asserts:
34. ... that the defendant violated Labor Law § 241(6), Industrial Code
section 12 NYCRR 23-1.21(b)(4)(ii) provides:
(4) Installation and use. (ii) All ladder footings shall be firm.
Slippery surfaces and insecure objects such as bricks and boxes shall not be
used as ladder footings. 12 NYCRR 23-1.21(b)(4)(ii)
35. Additionally in support of [Claimant’s] claim that defendant violated
Labor Law § 241(6), Industrial Code section 12 NYCRR 23-1.21(b)(4)(v)
(4) Installation and use. (v) The upper end of any ladder which is
leaning against a slippery surface shall be mechanically secured against side
slip while work is being performed from such ladder. 12 NYCRR
(Jones Affirmation, ¶¶ 34-35)
12 NYCRR 23-1.21(b)(4)(ii) has been held to be a specific code section for
establishing a cause of action under Labor Law § 241(6) (Sprague v
Peckham Materials Corp., 240 AD2d 392, 394 [2d Dept 1997]).
12 NYCRR 23-1.21(b)(4)(iv) provides that:
When work is being performed from ladder rungs between six and 10 feet above the
ladder footing, a leaning ladder shall be held in place by a person stationed at
the foot of such ladder unless the upper end of such ladder is secured
against side slip by its position or by mechanical means ... (emphasis
in Jones Reply Affirmation, ¶ 19).
12 NYCRR 23-1.21(b)(4)(iv) has been held to be a specific code section for
establishing a cause of action under Labor Law § 241(6) (Ferrero v Best
Modular Homes, Inc., 33 AD3d 847, supra at 851).
Claimant stated that he remembered that the mat was “very slippery”
on the day of his accident (Taylor EBT, p. 128; Jones Affirmation, ¶ 13).
Defendant concedes that the mat, floating as it did on the water, was,
“[i]n all likelihood,” wet (McDermott Memorandum in Opposition,
p.8). It is not clear, however, that it was slippery. Mr. Aliyu did not
recall seeing anything slimy on the mat (Aliyu EBT, p. 68). Mr.
Chimezie’s testimony was confused about whether he ever encountered
slippery conditions on the mats (Chimezie EBT, pp. 68-70). In any event,
Defendant contends that the safety shoes, noted above, created friction and
prevented slippage (van Hemmen Affidavit, ¶¶ 21, 25).
Claimant further contends that liability under Labor Law § 241(6)
“extends not only to the point where the ... work was actually being
conducted, but to the entire site, including passageways utilized in the
provision and storage of tools, in order to [ensure] the safety of laborers
going to and from the points of actual work” (Whalen v City of New
York, 270 AD2d 340, supra at 342, quoting Sergio v Benjolo,
168 AD2d 235, 236 [1st Dept 1990]; Jones Affirmation, ¶ 37).
Defendant contends that Claimant was hired as a boat captain and was not hired
to perform construction, excavation or demolition work and is not entitled to
protection under Labor Law § 241(6) (McDermott Memorandum, p. 13).
Defendant further argues that, while Claimant may have been employed to work on
a construction site, unless he was “employed for the purpose of performing
construction or repairs,” he was not protected by Labor Law § 241(6)
(id.; Kopp v Flagg Props., 302 AD2d 367, 367 [2d Dept
Defendant further asserts that the violations of the Industrial Code alleged by
Claimant are unpersuasive absent expert testimony regarding a violation
(McDermott Memorandum in Opposition, p. 16). Thus, Defendant asserts
Claimant’s motion should be denied.
Moreover, Defendant asserts that 12 NYCRR 23-1.7(d) is inapplicable to this
case because Claimant was not working on an “elevated surface”
(McDermott Memorandum in Opposition, p. 14). According to Defendant’s
marine engineering expert, Mr. van Hemmen, a mat floating on water is not an
elevated work surface (van Hemmen Affidavit, ¶ 22). Mr. van Hemmen further
averred that there was no evidence that 12 NYCRR 23-1.21(b)(4)(ii) was violated
(id. ¶ 24) and that 12 NYCRR 23-1.21(b)(4)(v) is inapplicable in
this case because Claimant was not performing work from the ladder at the time
of his alleged injury (id. ¶¶ 27 and 28).
As an initial matter, the Court rejects Mr. van Hemmen’s opinion that a
mat floating on water is not an elevated work surface. The Second Department
concluded that a dock builder working on a floating stage that was very similar
to the mat described in this Claim was subjected to an elevation-related risk
that permitted a claim under Labor Law § 240(1) (Dooley v Peerless
Importers, Inc., 42 AD3d 199 [2d Dept 2007]). The same logic would appear
to apply to Claimant’s cause of action pursuant to Labor Law §
241(6). The Second Department considered the differential between the level of
the dock and the bottom of the creek on which it floated in finding that tie
lines and/or a guardrail could have prevented the gravity-related injury
sustained by the dock worker (id. at 204).
At the same time, the Court finds that a material question of fact exists as to
whether the ladder and the mat were in a “slippery condition” such
that a violation of 12 NYCRR 23-1.7(d) occurred.
With respect to the asserted violations of 12 NYCRR 23-1.21(b)(4)(ii) and 12
NYCRR 23-1.21(b)(4)(v), material questions of fact exist as to whether: (1) a
slippery surface was used as a ladder footing; (2) the upper end of the ladder
which was leaning against the barge was leaning against a slippery surface; (3)
the ladder was secured against side slip; and (4) work was being performed from
the ladder. In Arigo v Spencer
, the Appellate Division, Fourth
Department determined that 12 NYCRR 23-1.21(b)(4)(iv) and (v) “apply only
when work is being performed from a ladder” (39 AD3d 1143, 1145 [4th Dept
. The asserted violation of 12 NYCRR
23-1.21(b)(4)(iv) also appears to raise the same material questions of fact
discussed above in connection with Section 240(1) about whether the ladder was
Because material questions of fact exist regarding the applicability of the
Industrial Code provisions relied upon by Claimant, both motions for summary
judgment as to the Labor Law § 241(6) cause of action are denied.
Common-Law Negligence and Labor Law § 200
Labor Law § 200 is a codification of the common-law duty imposed upon an
owner or contractor to exercise reasonable care to provide workers with a safe
place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343,
supra at 352; Comes v New York State Elec. & Gas Corp., 82
NY2d 876, supra at 877) . “It is generally accepted that a ladder
falls within the protection afforded by Labor Law § 200” (Higgins
v 1790 Broadway Assoc., 261 AD2d 223, 224 [1st Dept 1999]). A distinction
has been drawn, however, between those cases in which an injury is caused by a
defective condition of the premises and those in which the injury results, not
from a defect in the land itself, but rather from defective equipment or its
operation (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [4th Dept 1996]).
Where the alleged defect or dangerous condition arises from defective equipment
or its operation, it must be shown that the party to be charged with the duty
exercised some degree of supervision or control over the activity that brought
about the injury before liability will attach (Rizzuto v L.A. Wenger Contr.
Co., 91 NY2d 343, supra at 352; Comes v New York State Elec. &
Gas Corp., 82 NY2d 876, supra at 877; Russin v Picciano &
Son, 54 NY2d 311, 317 ).
Thus, there can be no liability under the common-law, or Section 200, for the
negligent acts of others (such as some defect in their tools or methods) over
whom the owner had no direction or control (Lombardi v Stout, 80 NY2d
290, 295 ; Allen v Cloutier Constr. Corp., 44 NY2d 290, supra
at 299; Miller v Wilmorite, Inc., 231 AD2d 843, supra at 843
). General supervisory authority exercised at the work site, such as overseeing
the progress of the work and inspecting the work product, is insufficient to
demonstrate the level of supervision and control necessary to impose liability
under Section 200 or the common law (O’Connor v Spencer, 2 AD3d
513, 515 [2d Dept 2003]; Hernandez v Yonkers Contr. Co., 306 AD2d 379,
380 [2d Dept 2003]; Alexandre v City of New York, 300 AD2d 263, 264 [2d
Regarding Claimant’s cause of action seeking recovery under Labor Law
§ 200, Defendant asserts Claimant must demonstrate both that he was an
enumerated worker entitled to the protection of the Labor Law, because he was
permitted or suffered to work on a building or structure, and that he was hired
by the owner, contractor or their agent (Mordkofsky v V.C.V. Dev. Corp.,
76 NY2d 573, 576-577 ; McDermott Memorandum, p. 15). Defendant argues
that Claimant was not so permitted or suffered to work even though he was
employed by Phoenix and worked at the Project site. Thus, he is not entitled to
the protection of Labor Law § 200 (id.). Defendant’s argument
that Claimant was employed by Phoenix exclusively as a boat captain, and
performed no construction related tasks, is discussed above in connection with
that branch of the Claim that asserts a violation of Labor Law § 240(1).
With respect to the issue of supervision, Defendant asserts it did not exercise
supervisory control because Claimant was employed by Phoenix and that Mr. Keeley
was Claimant’s immediate supervisor. Defendant asserts it did not hire or
direct Claimant’s employment and the ladder from which he allegedly fell
was owned by Phoenix (McDermott Memorandum, p. 16).
Mr. Franzese, the State EIC of the Project, averred that all construction
equipment and materials used on the Project work site, including the ladder from
which Claimant allegedly fell, were owned and controlled by Phoenix (Franzese
Affidavit, ¶¶ 7, 11); that all employees hired to do work, including
Claimant, were employees of Phoenix (id. ¶ 8); that the State did
not direct or control the employees of Phoenix (id. ¶ 9); that the
means, manner, method and mode of access to the work barge were determined by
Phoenix (id. ¶ 10); that the responsibility of Mr. Franzese, and
that of the State inspectors assigned to the Project, was to ensure that Phoenix
complied with the Contract specifications, the State’s Standard
Specifications and Phoenix’s Health and Safety Plan (id. ¶
Based upon the evidence submitted, the Court concludes that Defendant has made
a prima facie case for summary judgment with regard to the Labor Law
§ 200 and common-law negligence causes of action by establishing that the
State did not exercise supervisory control over the work site, including the
ladder used by Claimant, other than general supervisory authority for the
purpose of overseeing the progress of the work and inspecting the work site.
Such supervision is insufficient to impose liability pursuant to Labor Law
§ 200 or pursuant to the principles of common-law negligence (Alexandre
v City of New York, supra).
Claimant failed to offer any evidence in opposition to this portion of
Defendant’s motion, nor did the Reply Affirmation of Matthew J. Jones
raise a triable issue of fact as to whether Defendant exercised supervision and
control over the Project (see ¶¶ 43-47). Defendant’s
motion to dismiss the Labor Law § 200 and common-law negligence causes of
action is, therefore, granted.
Albany, New York
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant’s
and Claimant’s motions for summary judgment:
Defendant’s Notice of Motion,
Affidavits and Exhibits Attached,
Memorandum of Law, Reply Memorandum
of Law and Memorandum of Law in
Opposition to Claimant’s Motion 1
Claimant’s Notice of Motion,
Affirmation and Exhibits Attached,
Affirmation in Opposition to Defendant’s
Motion and Exhibits Attached 3
Affidavit of Henry Meyers, Defendant’s Expert,
in Opposition to Claimant’s Motion
Affidavit of Hendrik van Hemmen,
Defendant’s Expert, in Opposition to
Claimant’s Motion and Exhibit Attached 5
Reply Affirmation in Support of
Filed Papers: Claim, Amended Claim, Answer to Amended Claim
.The Claim of June Taylor is derivative in
nature. All references to Claimant will be to James Taylor unless otherwise
, the plaintiff fell while
ascending a ladder. He was climbing the ladder for the purpose of installing a
chimney liner. The Appellate Court held that 12 NYCRR 23-1.21(b)(4)(iv) and (v)
were not applicable as work was not being performed at the time plaintiff