New York State Court of Claims

New York State Court of Claims

DELISO v. THE STATE OF NEW YORK, #2008-041-026, Claim No. 112522, Motion Nos. M-74326, M-74807, CM-74499


Synopsis


Defendant’s motion for summary judgment dismissing claim is granted with respect to Labor Law §§ 240 (1) and 241 (6) causes of action and denied as to Labor Law § 200 and common-law negligence causes of action where claimant was injured when he tripped on hose laying on work platform and his right leg became caught in an 8-10 inch gap between adjoining pontoon/barge. Claimant’s motion for summary judgment under Labor Law §§ 240 (1) is denied.

Case Information

UID:
2008-041-026
Claimant(s):
ANGELO DELISO
Claimant short name:
DELISO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112522
Motion number(s):
M-74326, M-74807
Cross-motion number(s):
CM-74499
Judge:
FRANK P. MILANO
Claimant’s attorney:
HOFMANN & ASSOCIATESBy: Timothy F. Schweitzer, Esq.
Defendant’s attorney:
BETANCOURT, VAN HEMMEN, GRECO & KENYONBy: Virginia A. Harper, Esq.
Third-party defendant’s attorney:

Signature date:
July 17, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the claim and claimant cross-moves for summary judgment on his cause of action asserting defendant’s liability under Labor Law 240 (1). On January 21, 2005, claimant was employed by Modern Continental Construction Company (Modern Continental) as a construction worker assisting in the replacement of the Wantagh State Parkway Bridge, over the Sloop Channel, in Wantagh, New York, pursuant to a contract between the New York State Department of Transportation and Modern Continental.

Claimant was working upon a 100 foot long “ringer barge,” floating in the channel, to which were attached pontoons on either side of the ringer barge. The attachment was secure, accomplished through an interlocking “pin” mechanism below the walking surface of the adjoined barge and pontoon. A gap of 8 to 10 inches wide existed between the ringer barge and the pontoons for the entire length of each side of the barge. The gap was apparently an intended part of the ringer barge/pontoon design. The purpose of the ringer barge and pontoons was to support and stabilize a crane from which hung large pneumatic and diesel hammers which were used to drive bridge-supporting piles or caissons into the channel bed.

The pneumatic and diesel hammers were powered by hoses which were ever-present at varied locations at various times on the deck of the ringer barge and pontoons. The hoses could not be permanently affixed because they had to be moved when the hammers and crane were moved. Claimant had been employed at the site, for over a year, since late 2003 and had observed the hoses on the deck and the gap between the ringer barge and the pontoons many times.

On January 21, 2005, the claimant was assigned to cut steel plates of a predetermined size from a larger sheet of steel plate. Claimant used an acetylene torch to cut the plates. At some point the oxygen tank feeding the torch emptied and claimant went to get a replacement tank from a materials barge which was tied alongside the ringer barge and an adjoining pontoon. Claimant walked up a metal ramp which provided the only access between the ringer barge/pontoon and the materials barge. Claimant placed a 100 to 125 pound oxygen tank on his shoulder and, after proceeding back down the ramp, stumbled on a hose laying on the pontoon, and then his right leg became lodged in the gap between the ringer barge and the pontoon. Although the exact depth estimates varied, it is uncontroverted that claimant’s right leg went into the gap up to a distance of between his ankle and his thigh.

The claim alleges violations of Labor Law 200, 240 (1), 241 (6) and common-law negligence. The answer alleges that claimant was injured through his own culpable conduct or through the culpable conduct of a third party.

The claim was filed on July 11, 2006 and has been bifurcated. Claimant’s bill of particulars was served on or about October 30, 2006 and claimant was deposed on May 1, 2007. Claimant’s liability expert disclosure was made on or about July 25, 2007 and claimant filed a note of issue/certificate of readiness on September 27, 2007. Defendant’s motion for summary judgment was made on December 13, 2007. Claimant’s cross-motion for summary judgment was made on February 1, 2008.

The defendant’s motion for summary judgment dismissing the 240 (1) cause of action asserts that the facts do not demonstrate that claimant’s injury was caused by inadequate or missing safety equipment at an elevated worksite. Defendant further argues that claimant may not recover under Labor Law 241 (6) because claimant cannot show a specific violation of an administrative regulation of the New York State Industrial Code, as required for liability under the statute. Defendant moves for dismissal of the causes of action alleging liability under Labor Law 200 and common-law negligence because claimant cannot show that the defendant supervised or controlled claimant’s work, nor can claimant show that the state had actual or constructive notice of a dangerous condition on its premises.

Claimant opposes defendant’s motion and cross-moves for summary judgment on his 240 (1) cause of action.

After submission of the defendant’s motion for summary judgment and claimant’s cross-motion for partial summary judgment, defendant moved to strike from the record those portions of claimant’s affidavit in opposition which assert that the gap between the ringer barge in the pontoons was large enough (12 to 13 inches) for a person to fall through and which further asserted that the defendant supervised and controlled construction at the project, both of which are allegedly contrary to, or absent from, claimant’s deposition testimony, verified bill of particulars and liability expert report.

The following general principles inform the Court’s consideration of the competing summary judgment motions:

“A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact . . . Once such 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 raise material issues of fact which require a trial of the action” (Singer v Neri, 31 AD3d 738, 739-740 [2d Dept 2006]).

The Court must “view the evidence in the light most favorable to the . . . the party opposing the motion for summary judgment, and draw all reasonable inferences in its favor” (Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 119 [2d Dept 2006]).

“Summary judgment is often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue” (Siegel, NY Prac § 278, at 459-460 [4th ed]); see Gilson v Metropolitan Opera, 5 NY3d 574, 578 [2005]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).

“On a motion for summary judgment, the court’s function is to determine whether material factual issues exist, not to resolve such issues” (Tunison v D.J. Stapleton, Inc., 43 AD3d 910 [2d Dept 2007]). Further, “[i]t is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence . . . [and] [i]t is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Scott v Long Island Power Authority, 294 AD2d 348 [2d Dept 2002]).

Finally, “questions of negligence and apportionment of fault are generally matters for the factfinder” (Kovit v Hallums, 307 AD2d 336, 337 [2d Dept 2003]).

The defendant’s motion for summary judgment dismissing the 240 (1) claim essentially argues that the facts do not demonstrate that claimant’s injury was caused by inadequate or missing safety equipment at an elevated worksite.

Labor Law § 240 (1) provides as follows:
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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.”
The Court of Appeals explained, in Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 [1991]), that “[t]he legislative purpose behind this enactment is to protect ‘workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’ (Koenig v Patrick Constr. Co., 298 NY 313, 318).”

In Munoz v DJZ Realty, LLC (15 AD3d 363, 364 [2d Dept 2005]), the court reminds that “Labor Law § 240 (1) is to be construed liberally to accomplish its legislative purpose which is the ‘protection of persons in gaining access to or working at sites where elevation poses a risk’ (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).”

However, “[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001]).

Labor Law § 240 (1) liability requires that a “worker injured by a fall from an elevated worksite must . . . generally prove that the absence of or defect in a safety device was the proximate cause of his or her injuries” (Felker v Corning Inc., 90 NY2d 219, 224 [1997]; see Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855, 856 [2d Dept 2007]).

Defendant argues that claimant has not identified any particular safety device which was absent or inadequate and has not shown that the lack of, or inadequacy of, any such device caused his injury.

Defendant asserts that claimant was injured in a simple trip and fall over the hoses on the pontoon deck, leading to claimant stepping into the 8 to 10 inch gap between the pontoon and the ringer barge, all of which was caused by claimant improperly carrying a 100 to 125 pound oxygen tank on his shoulder.

The accident report, prepared in claimant’s presence, states that “while walking on barge deck [claimant] tripped on hose caught rt leg in space between barge and outrigger pontoon.” Claimant’s bill of particulars does not identify any elevation-related hazard, other than the “uncovered/unguarded gap.”

Defendant points out that the deposition testimony of claimant and of claimant’s foreman, Joseph Pastorino (Pastorino), as well as the affidavit of Jack Lee (Lee), the Safety Officer for Modern Continental, show that the 8 to 10 inch gap in the work platform was not large enough for a worker to fall through and thus did not constitute an elevation-related hazard contemplated by the statute. When asked at his deposition whether his “whole body” could have fallen in the gap directly into the water below, claimant responded, “impossible.” According to foreman Pastorino, who observed claimant’s leg in the gap, claimant’s whole leg could not even fit into the gap and it “was more like his foot was in it.” In response to the deposition question, “Can a person’s whole body fall through that gap,” Pastorino answered, “no.” In describing the gap, Safety Officer Lee swore that there “is no way that a human being can fall through that space.”

Defendant argues that case law under Labor Law 240 (1) provides that a gap in the barge deck of the size identified by the witnesses simply does not qualify as the sort of elevation-related hazard envisioned by the statute. In Alvia v Teman Elec. Contracting, Inc. (287 AD2d 421, 422 [2d Dept 2001]), the court considered whether a “12 inch by 16 inch hole in the floor,” into which the plaintiff’s left leg fell after he tripped on a piece of plywood, could support liability under 240 (1):
“The cause of action based on Labor Law § 240 (1) was properly dismissed, as a hole of this dimension does not pre-sent an elevation-related hazard to which the protective devices enumerated in the statute are designed to apply (see, Rocovich v Consolidated Edison Co., 78 NY2d 509; Piccuillo v Bank of N. Y. Co., 277 AD2d 93; D'Egidio v Frontier Ins. Co., 270 AD2d 763; cf., Carpio v Tishman Constr. Corp., 240 AD2d 234). Rather, the hole presented ‘the type of “ordinary and usual” peril a worker is commonly exposed to at a construction site’ (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 489; see also, Narducci v Manhasset Bay Assocs., 96 NY2d 259).”
Similarly, in Rice v Board of Education of City of New York (302 AD2d 578, 579 [2d Dept 2003], lv denied 100 NY2d 516 [2003]):
“[P]laintiff sustained personal injuries after his leg allegedly fell into a hole in the rear of a flatbed truck while unloading bundles of steel at a construction site . . . [and the] evidence presented at trial by the plaintiff established that the hole in the platform of the flatbed truck was approximately one-foot by one-foot in size, and that the plaintiff's leg went into the hole up to his thigh, or approximately 2 ½ to 3 feet.”
The Rice court held, at p. 580, that a hole of the dimension described above did not present an elevation-related hazard to which the protective devices enumerated in Labor Law § 240 (1) are designed to apply.

In sum, defendant urges that the claimant has not shown that the accident was caused by the lack of a safety device at an elevated work site.

The Court initially finds that defendant has made a prima facie showing of entitlement to judgment dismissing claimant’s Labor Law § 240 (1) cause of action as a matter of law, having offered sufficient evidence to demonstrate the absence of any material issues of fact. The burden thus shifts to claimant to produce evidentiary proof in admissible form sufficient to raise material issues of fact as to defendant’s potential liability under Labor Law 240 (1).

Claimant attempts to salvage his 240 (1) cause of action by belatedly, and more expansively, alleging that his injuries were not only caused by his tripping over the hoses and stepping into the gap, as previously alleged, but also by the lack of a railing on the ramp which provided access to the materials barge where the oxygen tanks were stored.

Defendant objects to any consideration by the Court of claimant’s assertion, made for the first time in the context of these motions, that the accident was caused by lack of a handrail on the ramp accessing the materials barge. Claimant made no such allegation in either his bill of particulars or his liability expert disclosure, there has been no discovery with respect to this new theory and claimant has not moved for permission to amend either the bill of particulars or the expert disclosure.
The Court finds that claimant’s failure to allege that the lack of a railing on the adjacent materials barge ramp was a proximate cause of an elevation-related accident in the bill of particulars or in claimant’s expert disclosure precludes consideration of this new allegation on these motions.

“A [claimant] cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability . . . for the first time in opposition to the motion” (Winters v St. Vincent's Medical Center of Richmond, H.B.B.A., Inc, 273 AD2d 465 [2d Dept 2000]; see Araujo v Brooklyn Martial Arts Academy, 304 AD2d 779, 780 [2d Dept 2003] in which opponent of summary judgment motion alleges for first time in response to motion new theory that his fall down stairs was caused by defective handrail; see also Slacin v Aquafredda, 2 AD3d 624, 625 [2d Dept 2003]; Carminati v Roman Catholic Diocese of Rockville Centre, 6 AD3d 481, 482 [2d Dept 2004]; Harrington v City of New York, 6 AD3d 662, 663 [2d Dept 2004]; Mompoint v New York City Transit Authority, 8 AD3d 539, 540 [2d Dept 2004]; Figueroa v Gallager, 20 AD3d 385, 387 [2d Dept 2005]).

The Court’s decision to not consider claimant’s new theory of recovery is particularly compelled by claimant’s lack of excuse for not asserting his new theory of liability at an earlier and more appropriate time in the action, which claimant previously certified as ready for trial (see Comsewogue Union Free School Dist. v Allied-Trent Roofing Systems, Inc., 15 AD3d 523, 524 [2d Dept 2005]; Perez v Cassone Leasing, Inc., 40 AD3d 946, 947 [2d Dept 2007]; Mainline Elec. Corp. v Pav-Lak Industries, Inc., 40 AD3d 939, 939-940 [2d Dept 2007]; Medina v Sears, Roebuck and Co., 41 AD3d 798, 799-800 [2d Dept 2007]; Gallello v MARJ Distributors, Inc., 50 AD3d 734, [2d Dept 2008]).

The Court finds that defendant would be prejudiced if claimant is permitted to oppose the summary judgment motion under the new theory of liability since disclosure has been completed. Defendant has understandably prepared its motion on the basis of the allegations contained in the claim, bill of particulars and expert disclosure, and, in particular, has moved under the justifiable assumption that claimant would rely upon the theories of recovery previously disclosed.

Consideration of this new theory is also subject to the statement of readiness rules which require a showing of unusual or unanticipated circumstances in order to reopen any pretrial disclosure device. Uniform Rules for the Court of Claims 206.12 (c) (22 NYCRR 206.12 [c])provides as follows:
“Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.”
The claim was certified by claimant as ready for trial on September 27, 2007. Claimant has made no motion to amend either the bill of particulars or expert disclosure and has offered no reasonable excuse or, indeed, any excuse, for the delay in seeking to amend the bill of particulars and expert disclosure. Claimant has not suggested that unusual or unanticipated circumstances have developed subsequent to September 27, 2007, when he filed the note of issue/certificate of readiness.

Defendant also moves to strike from the record that portion of claimant’s affidavit in opposition which asserts that the gap between the ringer barge affixed to the pontoon was large enough (12 to 13 inches) for a person to fall through, in contradiction of claimant’s deposition testimony which identified the gap as 8 to 10 inches in width. Claimant’s clear intention is to create an issue of fact (or to obtain summary judgment on his cross-motion) by showing that the gap presented an elevation-related risk such that a worker could fall through the gap to the water below unless safety devices were in place.

The law is clear that a party may not create triable issues of fact by submitting self-serving affidavits contradicting prior sworn testimony (Kaplan v DePetro, 51 AD3d 730 [2d Dept 2008]). Here, claimant transparently attempts to defeat defendant’s summary judgment motion by presenting “a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony” (Karwowski v New York City Transit Authority, 44 AD3d 826, 827 [2d Dept 2007]; Baxter v Jackson Terrace Associates, LLC, 43 AD3d 968, 969 [2d Dept 2007]; Yan Quan Wu v City of New York, 42 AD3d 451, 453 [2d Dept 2007]; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711 [2d Dept 2007]). Both claimant and his foreman had previously sworn that it was not possible for a person to fall through the gap in question.

Claimant next alleges that the ringer barge and pontoons themselves constitute an elevated work site akin to a scaffold, relying on Dooley v Peerless Importers, Inc. (42 AD3d 199 [2d Dept 2007]). Dooley involved a dock builder who fell from a 10 foot long by 4 foot wide platform or stage, without railings, floating upon a creek. The Dooley court described the accident as follows, at pp. 201-202:
“The plaintiff was about 20 minutes into his work, taking measurements for anchors that required piping, ‘work[ing his] way down the line,’ and moving the stage into position by ‘grabbing the hole that was burnt into the steel.’ At that point, he testified, the floating stage shifted from beneath his feet, and he was ‘hanging a few seconds . . . a foot or so above the water.’ He hung by his right hand, which was in an anchor hole only big enough for one hand, with a diameter of about 3 ½ to 4 inches. He screamed for help, but no one came. He took his left hand and grabbed his right wrist, pulled himself up about 1 ½ feet, and tried to position his left hand so that he could pull himself up. He testified that, after several unsuccessful attempts, his hand slipped out of the hole. As he fell, he twisted his body toward the floating stage, and missed hitting it directly. He landed in the water of the creek, and struck his armpit, as well as his elbow, on the corner of the floating stage. He testified that, by that time, he was in water ‘up to [his] chest.’

As for the distance of his fall, the plaintiff testified as follows. He initially hung about a foot above the water. He pulled himself up an additional ‘foot and a half at least.’ Thus, at that point, he was about 2 ½ feet above the water when his hand slipped and he fell. He further testified that when he fell, he did not stop falling until his arm was ‘pierced on the deck and the water was up to [his] chest.’ The plaintiff continued: ‘I didn't hit any bottom. So, I didn't stop falling for another five feet.’ Thus, counting the depth to which he sank in the water, the plaintiff estimated that he fell about eight feet.”
The Dooley court explains, at p. 200, that the “central issue presented for our review is whether, under the circumstances presented, the plaintiff's injury was the result of an elevation-related hazard, thus entitling him to the protection of Labor Law § 240 (1).”

The court concluded that 240 (1) applied, because:
“[T]here was a differential between the level of the plaintiff's work, and a lower level--the latter being the bottom of the creek. An elevated platform--in this case a floating platform instead of a scaffold--was necessary to enable the plaintiff to do his job precisely because gravity otherwise would have been a hindrance to his work, much as it would be, for example, in a situation where a worker has to perform work enumerated in Labor Law § 240 (1) on a building with the help of a scaffold.” (Dooley, 42 AD3d at 203-204).
Importantly, the Dooley court explained, at p. 204, exactly why, under the particular facts presented, the stage or platform was akin to a scaffold:
“In the scaffold situation, if a worker had no protective devices, such as a harness or a guardrail, and suffered injuries in a fall from a shifting scaffold, Labor Law § 240 (1) clearly would offer the worker its protection . . . We see no reason why a different result should obtain here because the plaintiff, while working from a floating stage, was standing at or near the surface of a creek. A sufficient number of tie lines and/or a guardrail could have prevented this accident.”
The circumstances of claimant’s case differ significantly from Dooley. The plaintiff in Dooley fell into the water from the unsecured 10 foot by 4 foot platform because it “shifted from beneath his feet” and had no guardrail. In the instant matter, according to claimant’s deposition testimony, the ringer barge (to which the pontoons were “permanently affixed,” according to foreman Pastorino) could not move laterally because “the piles are holding it.”

Again, according to claimant’s deposition testimony and affidavit, the ringer barge/pontoon gap ran along the 100 foot length of the ringer barge and pontoon. The Court has observed the photographs attached to the motion papers and it is apparent that the ringer barge and pontoons constituted a work platform exponentially larger than the 10 foot by 4 foot platform considered in Dooley.

Most importantly, claimant did not fall off the ringer barge/pontoon. Rather, claimant tripped on the hoses on the work platform and stumbled into the gap. Further, claimant has not identified any safety device which would have remedied an elevation-related risk which caused claimant’s injury. Unlike Dooley, “tie lines and/or a guardrail” would not have prevented claimant’s injury, claimant having stumbled over a hose lying on his work platform.

Claimant’s reliance upon Olsen v James Miller Marine Service, Inc. (16 AD3d 169, 170 [1st Dept 2005]) is also misplaced. In Olsen, plaintiff:
“[W]as injured while aboard a barge, leased by his employer, performing work in furtherance of the excavation, rehabilitation and repair of the Con Edison-leased East 14th Street Pier. While assisting a coworker open a sliding door, plaintiff stepped onto plywood covering a hole in the center of the barge, the plywood slid from under him and he fell into the hole”
There is no further relevant description of the circumstances of the accident, such as the dimensions or depth of the hole. In fact, defendant argues that this brief factual recital shows that the hole in Olsen was large enough for the plaintiff to fall through, in contrast with the claimant here simply having his leg lodged in the gap, at a depth perhaps as shallow as his ankle, but certainly at a depth no greater than his thigh.

The Court need not rely solely upon the “fell into” language of the Olsen decision, since the Olsen court also affirmed, at p. 171, the lower court’s finding that Labor Law 241 (6) was applicable to the plaintiff’s accident because the hole violated “[i]ndustrial Code (12 NYCRR) § 23-1.7 (b) (1), requiring that every hazardous opening into which a person may step or fall be guarded by a substantial cover fastened in place or by a safety railing . . .” This holding is significant because Industrial Code (12 NYCRR) § 23-1.7 (b) (1):
“[I]s inapplicable where the hole is too small for a worker to fall through” (Alvia v Teman Elec. Contracting, Inc., 287 AD2d 421, 423 [2d Dept 2001], lv dismissed 97 NY2d 749 [2002].”
The lower court therefore necessarily found, and the appellate court agreed, that the hole into which the Olsen plaintiff fell was large enough for a worker to fall through, a fact which is absent in this claim and which negates the gap as an elevation-related hazard.
Claimant also relies upon Campisi v Epos Contracting Corp. (299 AD2d 4, 5 [1st Dept 2002]), in which the plaintiff “fell through the gap [between two floor joists covered with loose planking] as far as his elbows and ended up dangling between the first floor and the basement”. As in Olsen, and absent here, the gap in Campisi appeared to have been large enough for the “dangling” plaintiff to fall through to the basement had plaintiff not caught his elbows on the floor joists and the gap. That gap therefore presented an elevation-related risk.

Finally, claimant unpersuasively points to Franklin v Dormitory Authority of the State of New York (291 AD2d 854 [4th Dept 2002]) to support his 240 (1) claim. The Franklin case is inapplicable to the present claim because the plaintiff in Franklin, after stepping on a loose plank while working on a scaffold, was only “prevented from falling to the ground because his left leg became entangled in the scaffolding.” As a result of the events of January 21, 2005, claimant here was never in any danger of falling through the gap nor was he in danger of falling off the ringer barge/pontoon, facts made clear by claimant’s own deposition testimony and that of his foreman, Pastorino.

The Franklin court concluded that Labor Law 240 (1) applied to that accident because it was caused by the failure of a safety device while plaintiff was engaged in a covered activity on an elevated scaffold. The fact that the plaintiff was prevented from falling all the way to the ground because he became entangled in the scaffold as he fell did not change the essential nature of the incident, which involved a fall from a scaffold due to lack of appropriate safety devices.

Narducci, (96 NY2d at 267) reminds that:
“Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.”
The Court finds that claimant’s accident was not caused by a hazard contemplated by Labor Law 240 (1) but, instead, is more akin to the following factual situations in which 240 (1) causes of action were rejected: Worker injured when he fell into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall (Keavey v New York State Dormitory Authority, 6 NY3d 859, 860 [2006]); worker standing on a ladder is injured when struck by piece of metal duct he was cutting but did not fall from ladder (Turner v Garten Foods, 33 AD3d 691 [2d Dept 2006]); worker injured when he tripped over the uneven planking of a scaffold and fell to one knee but did not fall from the scaffold (Milligan v Allied Builders, Inc., 34 AD3d 1268 [4th Dept 2006]); worker injured when he stepped off scaffold, which was at ground level, onto pipe, which then rolled and caused him to fall into three-foot hole (Meslin v New York Post, 30 AD3d 309, 310 [1st Dept 2006]).

Accordingly, the defendant’s motion to dismiss claimant’s cause of action under Labor Law 240 (1) is granted. Claimant’s motion for summary judgment pursuant to Labor Law 240 (1) is denied.

Defendant further asserts that claimant may not recover under Labor Law 241 (6) because claimant cannot show a specific violation of an administrative regulation of the New York State Industrial Code, as required for liability under the statute, which provides as follows:

§ 241. Construction, excavation and demolition work
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

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 commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”
“Labor Law § 241 (6)imposes a nondelegable duty on owners and general contractors to ensure that ‘[a]ll areas in which construction . . . work is being performed’ are maintained in a safe condition. The areas that must be kept in a safe condition include not only the actual construction sites but the passageways the workers must travel through to get to and from those areas” (Bruder v 979 Corp., 307 AD2d 980, 981 [2d Dept 2003], lv denied 1 NY3d 502 [2003]).

“To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident” (Rivera v Santos, 35 AD3d 700, 702 [2d Dept 2006]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]; Ares v State of New York, 80 NY2d 959, 960 [1992]).

Claimant alleges that defendant violated 12 NYCRR 23-1.7 (b) (1):
“Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).”
Defendant correctly contends that 12 NYCRR 23-1.7 (b) (1) cannot support recovery because the regulation is “inapplicable where the hole is too small for a worker to fall through” (Alvia, 287 AD2d at 423; see Piccuillo v Bank of N.Y. Co., 277 AD2d 93 [2d Dept 2000]; D'Egidio v Frontier Ins. Co., 270 AD2d 763 [2000], lv denied 95 NY2d 765 [2000]; Rice v Board of Education of City of New York, 302 AD2d 578, 755 [2d Dept 2003], lv denied 100 NY2d 516 [2003]).

Defendant’s motion for summary judgment dismissing claimant’s cause of action under Labor Law 241 (6), founded upon 12 NYCRR 23-1.7 (b) (1), is granted.

Claimant further asserts that defendant violated 12 NYCRR 23-1.7 (e) [1] and [2], Industrial Code regulations which require that all floors, passageways and working areas be kept free from accumulations of dirt, debris, scattered tools and materials and from any other obstructions or conditions which could cause tripping.

Defendant argues that these provisions are inapplicable because the hoses were an “integral part of the construction” (O'Sullivan v IDI Const. Co., Inc., 7 NY3d 805, 806 [2006]). The hoses were ever-present in the various areas of the work platform and were often moved to address changing work requirements.

The Court finds them to be an integral part of the construction, and, accordingly, defendant’s motion for summary judgment dismissing claimant’s cause of action under Labor Law 241 (6), founded upon 12 NYCRR 23-1.7 (e) [1] and [2], is granted.

The fact pattern in this claim is remarkably similar to that in Schroth v New York State Thruway Authority (300 AD2d 1044, 1045 [4th Dept. 2002]):
“While engaged in vacuuming debris from a platform suspended beneath the bridge, claimant tripped on a sandblasting hose connected to a sandblaster being used by a coworker on a platform above claimant. The sandblasting hose, which was also connected to a compressor on a barge below claimant, would collect upon and be moved about claimant's platform in relation to the coworker’s movements above.”
The Schroth court held that the Court of Claims had committed reversible error in not granting defendant summary judgment dismissing the 241 (6) claim since:
“Section 23-1.7 (e) (2) requires that ‘[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials . . . insofar as may be consistent with the work being performed.’ Respondent submitted evidence sufficient to establish that the sandblasting hose on which claimant tripped did not constitute ‘debris’ or ‘scattered tools and material’ within the meaning of section 23-1.7 (e) (2). Rather, the hose was ‘consistent with,’ and thus an integral part of, the work being performed.”
Defendant has similarly shown that the hoses over which claimant tripped were consistent with, and therefore an integral part of, the work being performed (see Hageman v Home Depot U.S.A., Inc., 45 AD3d 730, 732 [2d Dept 2007]; Marinaccio v Arlington Cent. School Dist., 40 AD3d 714 715 [2d Dept 2007] lv denied 9 NY3d 809 [2007]; Dubin v S. DiFazio and Sons Const., Inc., 34 AD3d 626, 627 [2d Dept 2006]; Castillo v Starrett City, Inc., 4 AD3d 320, 321 [2d Dept 2004]).

Claimant also alleges, for the first time in the course of the litigation, that defendant violated 12 NYCRR 23-1.22 (b) (4) with respect to the materials barge ramp:
“Any runway or ramp constructed for the use of persons only which is located at, or extends to, a height of more than four feet above the ground, grade, floor or equivalent surface shall be provided with a safety railing constructed and installed in compliance with this Part (rule) on every open side.”
Defendant objects to the court’s consideration of this new theory and further argues that the gangway was not for “the use of persons only” but instead the gangway is covered by 12 NYCRR 23-1.22 (b) (3), which does not expressly require railings:
“Runways and ramps constructed for the use of wheelbarrows, power buggies, hand carts or hand trucks shall be at least 48 inches in width. Such runways and ramps shall be constructed of planking at least two inches thick full size or metal of equivalent strength. Such runways and ramps shall be substantially supported and braced to prevent excessive spring or deflection. Where planking is used on such runways and ramps, it shall be laid close, butt jointed and securely nailed. Such runways and ramps shall be provided with timber curbs at least two inches by eight inches full size, set on edge and placed parallel to, and secured to, the sides of such runways and ramps. Bracing for such runways and ramps shall be installed at a maximum of four foot intervals.”
As earlier stated with respect to the claimant’s newly offered theory of liability (lack of a handrail on the materials barge ramp) with respect to his 240 (1) cause of action, the Court will not consider claimant’s new theory of liability under 241 (6), offered for the first time in an attempt to defeat defendant’s summary judgment motion.

Even were the Court to consider claimant’s new theory of liability under 12 NYCRR 23-1.22 (b) (3) and (4), the record is devoid of facts addressing the dimension and use requirements pertaining to the materials barge ramp that are set forth in the regulations.

Defendant moves for dismissal of the causes of action alleging liability under Labor Law 200 and common-law negligence because claimant allegedly cannot show that the defendant supervised or controlled claimant’s work nor can claimant show that the state had actual or constructive notice of a dangerous condition on its premises.

Labor Law 200 provides as follows:
“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”
Labor Law 200 codified the common-law duty of an owner or employer to provide employees with a safe place to work (DeBlase v Herbert Constr. Co., 5 AD3d 624 [2d Dept 2004]). The statute applies to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (Lombardi v Stout, 80 NY2d 290, 294-295 [1992]).

“To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition . . . It is not a defendant's title that is determinative, but the amount of control or supervision exercised” (Delahaye v Saint Anns School, 40 AD3d 679, 683 [2d Dept 2007]).

The defendant’s liability for a defective or dangerous property condition is dependent upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Sloane v Costco Wholesale Corp., 49 AD3d 522 [2d Dept 2008]). Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

In support of its motion, defendant argues that it did not supervise or direct construction operations on the ringer barge and pontoons, and, in particular, did not exercise supervision and control over claimant in his metal burning work. Defendant further claims it had neither actual nor constructive notice of a dangerous condition created by the gap and hoses and additionally that the gap and hoses were open and obvious. Defendant points out that neither claimant nor his foreman ever complained to the defendant about the hoses or the 8 to 10 inch gap. Claimant’s supervisor, Pastorino, testified that the gap had been there for over a year, that the hoses were located in the “most convenient part” of the barge and that claimant saw the gap and the hoses every day.

Edmund Donovan (Donovan) was the engineer in charge for defendant at the Wantagh Bridge project. Donovan did not recall any of his inspectors ever reporting or complaining about the gap or the hoses. Modern Continental’s safety officer, Lee, swears that defendant did not direct operations on the ringer barge but instead, “Modern Continental directed the work all workmen working on the barge, including Angelo DeLiso. Modern Continental directed all operations taking place on the barge.”

Defendant has met its initial burden to show that it lacked both sufficient supervision and control of the work, as well as notice of a dangerous condition, for negligence liability to be found.

The burden thus shifts to claimant to show the existence of triable issues of fact. In considering whether claimant has shown the existence of triable issues of fact, the following principles apply.

“Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact” (Ayala v Gutin, 49 AD3d 677 [2d Dept 2008]).

It is also clear that “what accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” (Sarbak v Sementilli, 51 AD3d 1001, 1002 [2d Dept 2008]).

“The issue of whether a dangerous condition is open and obvious is fact specific, and thus usually a question for the jury” (Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]). A court may determine that a risk was open and obvious as a matter of law only “when the established facts compel that conclusion . . . and may do so on the basis of clear and undisputed evidence” (Tagle v Jakob, 97 NY2d 165, 169 [2001]).

“Although there is no duty to warn of an open and obvious condition, this principle does not absolve a [defendant] of the duty to maintain the property in a reasonably safe condition” (Mooney v Petro, Inc., 51 AD3d 746,747 [2d Dept 2008]).

Finally, the fact that a defect may be open and obvious does not negate a defendant’s duty to maintain its premises in a reasonably safe condition, but may raise an issue of fact as to the claimant’s comparative negligence (Holly v 7-Eleven, Inc., 40 AD3d 1033 [2d Dept 2007].

With those principles in mind, the Court makes the following observations. The construction contract permitted the defendant to suspend or stop work if the work was “not being performed . . . for the best interest of the State,” and the defendant required Modern Continental to implement a “Health and Safety Plan.” Claimant testified at deposition that there were about “a dozen” state inspectors in orange jackets observing the work being performed.

Pastorino testified that the state inspectors would carefully monitor the work and sometimes speak to Pastorino about how the work was being done. Pastorino stated that the state inspectors “would intervene in things if they felt maybe it was unsafe.” Foreman Pastorino “considered [the gap] a hazard” and reported it to his supervisors.

Donovan, as well as his inspectors, stepped over the hoses and gap three to four days a week for months while the pile-driving work proceeded. Further, Donovan admitted that he had stopped work on the project for worker safety reasons, in particular for workers failing to use a harness while exposed to the risk of a fall.

The Court finds that questions of fact exist concerning defendant’s supervision and control over the work which led to claimant’s injury, as well as whether defendant had notice of a dangerous condition allegedly created by the gap and hoses.

The defendant’s motion for summary judgment is granted to the extent that claimant’s causes of action under Labor Law 240 (1) and 241 (6) are dismissed. Defendant’s motion for summary judgment on claimant’s Labor Law 200 and negligence causes of action is denied. Claimant’s cross-motion for partial summary judgment is denied. The defendant’s motion to strike certain portions of claimant’s affidavit of April 7, 2008 is denied. Nevertheless, the Court found certain aspects of that affidavit, as it has set forth above, to lack probative value.


July 17, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed December 14, 2007;
  2. Affirmation of Ronald Betancourt, dated December 13, 2007, and annexed exhibits;
  3. Affidavit of Jack Lee, sworn to March 4, 2006;
  4. Claimant’s Notice of Cross-Motion, filed February 4, 2008;
  5. Affirmation of Timothy F. Schweitzer, dated February 1, 2008, and annexed exhibits;
  6. Affidavit of Angelo DeLiso, sworn to January 31, 2008;
  7. Affidavit of Raymond Bonne, sworn to January 30, 2008;
  8. Reply Affirmation of Ronald Betancourt, dated March 24, 2008, and annexed exhibits;
  9. Reply Affidavit of Jack Lee, sworn to March 26, 2008;
  10. Affidavit of John P. Coniglio, sworn to March 24, 2008;
  11. Reply Affirmation of Timothy F. Schweitzer, dated April 7, 2008;
  12. Reply Affidavit of Angelo DeLiso, sworn to April 7, 2008;
  13. Defendant’s Notice of Motion to Strike, filed April 14, 2008;
  14. Affirmation of Virginia A. Harper, dated April 11, 2008;
  15. Reply Affirmation of Timothy F. Schweitzer, dated April 18, 2008.