New York State Court of Claims

New York State Court of Claims

MICHAEL v. STATE OF NEW YORK, #2009-018-001, Claim No. 111667, Motion Nos. M-75471, CM-75569


Defendant argues that it is entitled to summary judgment because 12 NYCRR § 23.9.2(a) is only a general safety standard which lacks the specificity required to support a claim for a violation of Labor Law § 241(b). The Appellate Division Fourth Department found that 12 NYCRR §23.9.2(a) was “sufficiently specific to support a claim of a violation of Labor Law § 241(6). As a result, Defendant’s motion must fail.

Claimant has not established that the failure to maintain the equipment in proper operating condition was the cause of the accident, or the reason why the frame on the paver lowered, or that inadequate inspections or failure to maintain the paver was the proximate cause of Claimant’s injuries. Without evidence establishing these factors, summary judgment cannot be granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
HANCOCK & ESTABROOK, LLPBy: Thomas C. Cambier, Esquire
Defendant’s attorney:
SMITH, SOVIK, KENDRICK & SUGNET, P.C.By: Patrick Sardino, Esquire
Third-party defendant’s attorney:

Signature date:
January 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion for summary judgment. Claimant opposes the motion and

brings a cross-motion for summary judgment.

The majority of the facts are not in dispute:

Claimant was employed by C.F.R. Paving as a paver operator and has been so employed since 1998. Claimant began as a laborer just after high school but later was trained as a paver by a fellow employee. Claimant also received specialized training from the paver manufacturer in Cedar Rapids, Iowa in 2001 and at another time thereafter but before his accident. The Cedar Rapids training included electronics, hydraulics, mechanical, safety issues, and paving techniques.

C.F.R. Paving, owned by Michael Costello, was a subcontractor for Cianbro Corporation, the general contractor, on a project to reconstruct the Belgium Bridge in Baldwinsville and widen and realign Route 31 in the area of the bridge. Route 31 is a State-owned highway. On November 24, 2003, right before the accident, the paving crew had completed putting in the binder course[1] on the west end of the project. Claimant was operating a Cedar Rapids CR351 paver with a six-cylinder Cummings engine, self-propelled with two drive tires and four front tires. In the front, there is a hopper where the hot asphalt is dumped. The paver has a conveyer system that brings the material from the hopper to the back of the machine, where augers spread the material out evenly, then the screed[2] is pulled over the material which drags the material out and levels it off on the roadway surface. There is a narrow catwalk behind the screed.

The paver needed to be moved from the west side to the east side of the bridge to continue the work. When it is moved the burners must be lit to keep the screed hot. Claimant noticed that the burners were not producing a torch-like flame meaning the nozzles are plugged and need replacing. While an extension was being added to the paver,[3] Claimant had time to change the nozzles. It typically takes only five to ten minutes to change a nozzle which requires removing four screws and a cage, removing the nozzle, installing a new one and replacing the cage. The hot screed was raised in the air approximately one foot off the ground and on hooks for the trip to the new working location.

Upon arriving at the new location, Claimant stopped the paver on level ground, put it in neutral, dialed the speed to zero, engaged the brake, checked that the screed was on its hooks, and shut off the machine.

Claimant testified that on the left side of the screed the roadway was already built up eight to ten inches with a base course of asphalt, leaving only two inches between the asphalt and the screed. According to Claimant, the other members of the crew, Doug Comstock, Kevin Hugick, Sherry Brown, and Tim Lytle were working to either install or remove the paver extension, and as part of that process some four-by-four boards or two-by-four boards were placed under the paver extension, and Claimant said they were also placed under the right side of the screed. Michael Costello, the owner of the company, was also on the job site in front of the paver with Jeff Murray, the job foreman. Mr. Costello testified that there were no boards or blocks under the screed. According to Claimant, after the boards were in place he began to change the nozzle. He got between the catwalk and screed, removed the old nozzle and then put in the new nozzle. Claimant then turned the machine on to make sure there was fuel coming to the nozzle and not leaking. He then started to put the cage back on by tightening two of the screws. The machine then started to roll, the frame of the paver started to come down toward Claimant, and the screed came down on Claimant’s legs. Claimant was in a sitting position with his legs out in front of him with the screed on top of his legs, screaming for help. His co-worker, Doug, pulled him out from under the screed. Claimant could not walk and he was removed from the scene by ambulance. Both Claimant and Mr. Costello testified that Tom Kesilica, a representative from the Cedar Rapids Paving Manufacturer, was called in to repair the paver.

Mr. Costello testified that the paving crew was instructed on safety matters at least weekly. Each day, Claimant was responsible for getting the machine running and checking it over. Checking the paver over means checking the oil, fluids, starting the machine and heating up the screed, fueling it up and greasing it. No one else inspected the machine during the course of a job. Claimant did not have any type of checklist of items to review regarding the daily care and maintenance on the machine.

In the claim, as supplemented by Claimant’s Bill of Particulars, Claimant asserts that the State was negligent in its general duty to protect the health and safety of Claimant (Labor Law

§ 200) and that it violated Labor Law § 241(6) and the following specific regulations: 12 New York Code of Rules and Regulations (NYCRR) 23-9.2(a); 12 NYCRR 23-1.5(c)(1); 12 NYCRR 23-1.7(h); 12 NYCRR 23-1.8(c)(4); 12 NYCRR 23-6.1(j)(1); 12 NYCRR 23-9.2(g); 12 NYCRR 23-9.4(d)(1); 12 NYCRR 23-9.5(a); 12 NYCRR 23-9.5(c); 12 NYCRR 23-9.5(f); 12 NYCRR 23-9.7(b)(2).
Labor Law § 240(1)
Defendant argues that Claimant’s claim should be dismissed. It is Defendant’s position that Claimant’s reliance upon Labor Law § 240(1) must fail because his injuries were not caused by a falling object that was improperly hoisted or secured. Moreover, Defendant argues that even if Claimant’s injuries were caused by a gravity-related occurrence, Labor Law § 240 (1) does not apply where there is only a “de minimis elevation differential.” Claimant does not address this issue.

In reviewing Claimant’s pleadings and submissions, it appears to the Court that no Labor Law § 240(1) claim has been set forth. This seems consistent with Claimant’s failure to raise any issue with Defendant’s position on this portion of the motion. In any event, the work that Claimant was performing does not fall within the statutory language as Claimant was not involved in the erection, demolition, repairing, altering, painting, cleaning or painting of a building or structure and his work is not covered under the statute (see Berg v Albany Ladder Co., Inc., 10 NY3d 902; Costa v Mt. Hope Asphalt Corp., 26 AD3d 213; Vargas v State of New York, 273 AD2d 460).
Labor Law § 200
Defendant argues that it is not liable for Claimant’s injuries under Labor Law § 200 or common law negligence because, here, it did not supervise, direct, or control the work Claimant was doing. Defendant argues that its presence at the work site was not sufficient to support a negligence cause of action where it exercised no direct or indirect control over the work. Claimant also does not address this portion of the motion.

Labor Law § 200 is a codification of the common law general duty to provide workers with a safe work environment (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Skudlarek v Bethlehem Steel Corp., 251 AD2d 974). “...[A]n implicit precondition to this duty is that the party to be charged with that obligation ‘have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.’” (Rizzuto, 91 NY2d at 343,352), quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 317; Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877). “...[T]he duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work.” (Persichilli v Triborough Bridge and Tunnel Auth., 16 NY2d 136, 145; Ortega v Puccia, 57 AD3d 54). General supervisory authority, including the authority to enforce general safety standards is not enough to establish the level of direction or control necessary to sustain liability under Labor Law § 200 (Comes, 82 NY2d 876, 877; DePillo v Greater Auburn Land Co., Inc., 236 AD2d 863).

Here, there is no evidence that the State played any role in supervising Claimant’s work. The paver was owned by Claimant’s employer and Claimant was trained and directed in its operation by his employer, the subcontractor. Although the State was present at the work site daily, there is no indication it performed anything other than general supervisory authority or that the State had any notice of a dangerous condition. Under these circumstances Defendant has established that Claimant’s reliance upon Labor Law § 200 cause of action fails as a matter of law. For the same reasons, any common law negligence cause of action would fail as well.
Labor Law § 241(6)
Labor Law § 241(6) provides that contractors and owners engaged in construction, excavation, or demolition work, regardless of direction and control, have a nondelegable duty to conduct, construct, shore, equip, guard, arrange, and operate to provide reasonable protection to employees. Causes of action under this section must be based upon violations of specific sections of the Code of Rules and Regulations promulgated by the Commissioner of the Department of Labor applicable to the circumstances of the accident (Ross, 81 NY2d at 494, 502; Ares v State of New York, 80 NY2d 959, 960).

Defendant argues that none of the Industrial Codes which Claimant alleges were violated are applicable to the circumstances at hand, and none were violated. Claimant alleges that Defendant specifically violated and it is entitled to summary judgment for the violation of 12 NYCRR §§ 23-9.2(a) and 23-9.7(b)(2); or in the alternative, that issues of fact exist which preclude summary judgment.

As Claimant did not argue that 12 NYCRR 23-1.5(c)(1); 12 NYCRR 23-1.7(h); 12 NYCRR 23-1.8(c)(4); 12 NYCRR 23-6.1(j)(1); 12 NYCRR 23-9.2(a); 12 NYCRR 23-9.2(g); 12 NYCRR 23-9.4(d)(1); 12 NYCRR 23-9.5(a); 12 NYCRR 23-9.5(c); 12 NYCRR 23-9.5(f) are provisions which raise questions of fact, or support a granting of summary judgment in his favor, the Court will summarily address these provisions first.

Industrial Code provision 23-1.5(c)(1), provides that no employer shall require or allow an employee to operate any equipment or machinery which is not in good and safe repair. This provision lacks the requisite specificity required to support a cause of action pursuant to Labor Law § 241(6) (see Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892; Maday v Gabe’s Contracting, LLC, 20 AD3d 513).

Industrial Code provision 23-1.7(h) requires that all corrosive substances and chemicals must be stored and used so as not to endanger anyone and protective equipment shall be provided by the employer for the use of such substances. Industrial Code provision 23-1.8 (c)(4) provides that every employee who must handle corrosive substances or chemicals must wear appropriate protective apparel and eye protection. The Third Department in Creamer v Amsterdam High School, 241 AD2d 589, indicated that hot asphalt may be considered a “corrosive substance” under the regulations. Yet, in this case Claimant did not work directly with the asphalt, he operated the paver. There was no testimony or indication that his job required him to handle hot asphalt. But even if his job did require such contact, Claimant himself testified during his deposition that it was not hot asphalt that caused his injury, it was the hot metal of the screed of the paver. Thus these regulations do not support his Labor Law § 241(6) cause of action.

Industrial Code provision 23-6.1(j) provides that a hoisting machine must be equipped with hoist brakes capable of stopping and holding 150 percent of the rated capacity of the hoist. Every manually operated material hoist must be equipped with an effective pawl and rachet, and each electric motor driven material hoist must be provided with a mechanical automatic motor brake or an electrical or mechanical device to stop and hold 150 percent of the rated capacity of the hoist in case of power failure. This provision is simply not applicable to the facts of this case as Claimant was not using a hoisting machine.

Industrial Code provision 23-9.4(d) requires that power shovel and backhoes used for material handling shall have brakes or equivalent devices capable of sustaining at rest one and one-half times the maximum load rate. This provision is also not applicable to the facts of this case as Claimant was not using a power shovel or a backhoe.

Industrial Code provisions 23-9.5 applies to excavating machines and section (a) requires that excavating machines not be used where there are unstable conditions, slopes, or grade which may cause the machine to tilt dangerously. Stable footings are required. Subsection (c)

provides that excavating machines may only be operated by designated persons and only the operating crew may be on the machine while it is in operation. When it is not in use, the blade or dipper bucket must rest at ground or grade level. The operator shall not leave the controls unattended when the master clutch is engaged and oiling and greasing shall only be performed when the machine is at rest and the master clutch disengaged. Subsection (f) requires that the operator of the excavation machine shall not leave the controls until the bucket or blade had been lowered to contact the ground or grade surface. These provisions also are not applicable to the facts of this case as Claimant was not using excavating equipment.

Industrial Code § 23-9.2(g) provides that operators of material handling equipment shall not leave the equipment “while loads, buckets or blades are suspended.” Any such load, bucket or blade shall be made to rest on blocks, lowered to the ground or grade, or brought to the lowest end of the equipment. This provision is not applicable to the facts of this case as no load, bucket, or blade was involved in Claimant’s accident.

Claimant argues that he is entitled to summary judgment based upon a violation of

§ 23-9.2(a) of the Industrial Code. That section provides “[a]ll power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only when such equipment is at rest.” (12 NYCRR §23-9.2[a]). Claimant argues that Mr. Costello’s testimony establishes that a hydraulic leak in a hose caused the frame of the paver to come down and that this was the result of a failure to perform routine inspections to insure that the paver was in good working order as required by the regulation.

Defendant argues that it is entitled to summary judgment because 12 NYCRR § 23-9.2(a) is only a general safety standard which lacks the specificity required to support a claim for a violation of Labor Law § 241(6). Defendant takes issue with Claimant’s argument that the Fourth Department has “clearly established” that this section of the Code is sufficiently specific to support such a claim. Defendant argues that the language of § 23-9.2(a) is similar to another regulation (§ 23-6.1[a]) which the Fourth Department held insufficient.

The Appellate Division Fourth Department in Piccolo v St. John’s Home for the Aging 11 AD3d 884; Tillman v Triou’s Custom Homes, Inc., 253 AD2d 254; and Zacher v Niagara Frontier Services, Inc., 210 AD2d 897, found that 12 NYCRR § 23-9.2(a) was “sufficiently specific” to support a claim of a violation of Labor Law § 241(6) (see also Robinson v Barone, 48 AD3d 1179). As a result, Defendant’s motion for summary judgment on this ground must fail.

The question turns then to whether Claimant has established that this section is applicable to the facts herein, that the section was violated, and the violation was the proximate cause of Claimant’s injuries. The section cited reflects the general requirements for power operated equipment used in construction, demolition or excavation operations. This section has been found applicable to an accident involving a member of a paving crew who was injured by a roller (see Robinson, 48 AD3d at 1179). However, here, as in that case, Claimant has not established that the failure to maintain the equipment in proper operating condition was the cause of the accident. Claimant has not established, other than through inadmissible hearsay, the reason why the frame on the paver lowered, or that inadequate inspections or failure to maintain the paver was the proximate cause of Claimant’s injuries. Without evidence establishing these factors, summary judgment cannot be granted.

Claimant also argues that there are disputed issues of fact as to whether § 23-9.7(b)(2) of the Industrial Code was violated. Section 23-9.7(b)(2) provides that for motor trucks, “[n]o person shall work under the raised body of a dump truck unless such body is securely blocked to prevent accidental lowering.” (22 NYCRR § 23-9.7[b][2]). The application of the section to motor trucks, Claimant argues, has been held to include a scissor lift that was “being used in a truck like manner,” (Borowicz v International Paper Co., 245 AD2d 682); although in the Borowicz case, the Court actually addresses the application of another subsection, 12 NYCRR 23-9.7(c). Claimant argues that the frame raise on a paver works in an analogous way to the raised body of a dump truck. It is Claimant’s position that because this section, 12 NYCRR 23-9.7(b)(2), is intended to provide protection to workers from the accidental lowering of hydraulic lifts and there is no specific Code section for pavers, the Court can find that the regulation applies to pavers based upon the use, mechanism of operation, and circumstances surrounding the incident.

The information before the Court at this time would not permit this Court to find that the hydraulic lift holding up the frame on the paver was analogous to that of a dump truck. Such a determination would require expert testimony and is a disputed issue of fact.

Accordingly, based upon the foregoing, Defendant’s motion is GRANTED IN PART as set forth above, and Claimant’s motion is DENIED.

January 26, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:

1. Notice of Motion

2. Affidavit of Patrick B. Sardino, Esquire, in support, with exhibits attached thereto.

3. Memorandum of Law in Support of Motion for Summary Judgment on Behalf of

Defendant, State of New York.

4. Notice of Cross-Motion.

  1. Affirmation of Thomas C. Cambier, Esquire, in opposition to Motion No. M- 75471 and in support of Cross Motion No. CM-75569, with exhibits attached

6. Claimant’s Memorandum of Law.

7. Reply Affidavit of Patrick B. Sardino, Esquire, in further support of Motion No. M-75471 and in opposition to Cross Motion No. CM-75569.

8. Defendant’s Reply Memorandum of Law.

[1]. An intermediate course of blacktop (Costello transcript page 28, lines10-17).
[2]. The screed is a heavy piece of heated metal which basically works like a clothes iron (Costello transcript page 30, lines10-19).
[3].The extension was either being installed or removed - Claimant wasn’t sure which, but it is not a material fact to the issues involved.