New York State Court of Claims

New York State Court of Claims



Case Information

EDWARD J. LEN, As Administrator of the Estate of Michael E. Len, Deceased
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:
D’Agostino, Krackeler, Baynes & Maguire, P.C.
By: Mia D. VanAuken, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Kent B. Sprotbery, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
January 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This action arose from the December 7, 2006 death of claimant’s decedent Michael Len, an employee of the New York State Canal Corporation. He had been directed to report to Lock 9 of the Erie Canal and to assist in lifting the lock’s movable dams, a task that was performed each fall to allow for the winter ice flow. While engaged in this work, Len fell into the Mohawk River and drowned.

This action was commenced against three named defendants: the State of New York, the New York State Thruway Authority, and the New York State Canal Corporation. The claim itself does not distinguish between the alleged roles or actions of each, but simply states that decedent’s pain and suffering and death resulted from “negligence in failing to properly equip decedent with appropriate flotation devices [and] failing to provide the required and appropriate safety measures for claimants and to the property including but not limited to railings, tethers and safety boats.” In addition to instituting this action, claimant also filed for and received Workers’ Compensation benefits. In its answers,[1] defendant asserted as an affirmative defense that Workers’ Compensation was the exclusive remedy available to the estate as against each of the three defendants.

Defendant has moved for dismissal of the claim on that ground. Claimant acknowledges that suit against the Canal Corporation is barred by Workers’ Compensation Law but opposes the motion with respect to the State of New York and the Thruway Authority. Claimant has cross-moved to amend the claim to specifically assert causes of action based on Labor Law §§ 200, 240, and 241(6) against the State of New York, as owner of the property on which the accident occurred.

In 1992, jurisdiction over the State canal system was transferred from the Department of Transportation, an agency of the State of New York, to the New York State Thruway Authority (L 1992 ch 766). All assets, property and equipment of the canal system was transferred to the Thruway Authority “to be held by the authority in the name of the people of the State of New York” (Canal Law § 6). As part of the same legislation, the Canal Corporation was created as a subsidiary of the Thruway Authority to operate and maintain the canal system (Canal Law §§ 5, 6; Public Authorities Law § 382). Because of this interconnection of rights and authority, it not uncommon to find lawsuits in which all three entities are named as defendants (see e.g. Freeman v State of New York, 18 Misc 3d 1112(A) [Ct Cl 2005][wrongful death of bicyclist who drowned in canal]; Briggs v State of New York, 9 Misc 3d 1126(A) [Ct Cl 2005] [wrongful death of hiker who slipped on path next to canal]; Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001][bicycle accident next to canal]; Lostracco v State of New York, 2002 WL 31988560 [Ct Cl 2002][Labor Law claim by employee of subcontractor]; McNiece v State of New York, UID #2008-031-042, Claim No. 112388, Motion No. M-75053 [Ct Cl Sept. 8, 2008], Minarik, J. [slip and fall on canal towpath]; Diamond v State of New York, UID #2006-028-599, Claim No. 109174, Motion Nos. M-71008, CM-71244 [Ct Cl Oct. 23, 2006], Sise, P.J. [Labor Law claim by employee of subcontractor]). In at least one instance, the three entities also joined together to sue a contractor who performed work on a canal structure (State of New York v Over & Under Piping Contractors, Inc., 251 AD2d 1102 [4th Dept 1998]). The only discussion of the interaction of the three entities found in any of these decision occurs in Arquette, (supra), where the Court notes but does not decide defendants’ argument that the State of New York was not a proper party “because all jurisdiction over canal lands has been transferred to the Thruway Authority and the Canal Corporation” (190 Misc 2d at 678, n 1).

It is undisputed that the remedy provided by Workers’ Compensation Law is exclusive to the extent that it protects an employer from any other liability in connection with the disability or death of an employee when it is caused by injury “arising out of and in the course of” the employment (Workers’ Compensation Law §§ 10, 11). As noted above, claimant has acknowledged in the response to defendant’s motion that Michael Len was an employee of the New York State Canal Corporation and does not attempt to pursue that portion of the claim.

With respect to the status of the Thruway Authority, claimant places great emphasis on section 382(5) of the Public Authorities Law, which states that “employees of the canal corporation, except those who are also employees of the authority, generally shall not be deemed to be employees of the authority by reason of their employment by the canal corporation.” There are many exceptions to this “general” rule, however, some of which are set forth in the statute itself. Case law indicates that in most employment matters, Canal Corporation employees have in fact been designated as Thruway Authority employees (see e.g. Matter of Lamphron v State of N.Y. Thruway Auth., 239 AD2d 860 [3d Dept 1997] [Canal Corporation employee suit for accrued vacation time]; Matter of Weir v State of N.Y. Thruway Auth., 231 AD2d 836 [3d 1996] [termination of employment of Canal Corporation employee]).

Research has disclosed only one decision in which the status of a Canal Corporation employee vis-a-vis the Thruway Authority is considered with respect to the issue of Workers’ Compensation exclusivity. In Buckmann v State of New York (UID #2005-031-053, Motion No. M-69559 [Ct Cl June 30, 2005], Minarik, J.), a Canal Corporation employee who had been injured on the job collected Workers’ Compensation benefits and also moved for permission to file an untimely claim against both the State of New York and the Thruway Authority. Permission was granted because “[a]lthough defendants have raised an intriguing issue regarding the applicability of the Workers' Compensation exclusivity defense,” the record was not sufficiently developed for the issue to be determined (UID #2005-031-053, Motion No. M-69559 [Ct Cl June 30, 2005], Minarik, J.).

Subsequently, on a more thoroughly developed record and additional argument, the Court considered the many interconnections between the Canal Corporation and the Thruway Authority – particularly the facts that the Authority raises revenue for the Corporation (Public Authorities Law § 382[10]) and that the chairperson and members of the Authority also serve, with no additional reimbursement, as chairperson and members of the Canal Corporation (Canal Law § 138-a[2], Public Authorities Law §§ 382[3], 382[4]) – and concluded that, at least for purposes of determining the application of Workers’ Compensation Law §11, the Canal Corporation “is not a separate and distinct legal entity from the [Thruway] Authority” (Buckmann v State of New York, Claim No. 111344, Motion Nos. M-73410, CM-73906 [Ct Cl May 2, 2008], Minarik, J.). The employee, therefore, was barred from instituting a liability action against the Thruway Authority.

This Court reaches the same conclusion. “[A] parent corporation may be deemed to be the employer of an employee of a subsidiary corporation for Workers' Compensation purposes if the subsidiary functions merely as the alter ego of the parent” (Allen v Oberdorfer Foundries, Inc., 192 AD2d 1077, 1078 [4th Dept. 1993]). For that relationship to exist, “there must be direct intervention by the parent in the management of the subsidiary to such an extent that 'the subsidiary's paraphernalia of incorporation, directors and officers' are completely ignored” (id. citing Billy v Consolidated Mach. Tool Corp., 51 NY2d 152 [1980], quoting Lowendahl v Baltimore & Ohio R. R. Co., 247 App Div 144, 155 [1st Dept 1936], affd 272 NY 360 [1936]). It is difficult, if not impossible, to conclude that the subsidiary Canal Corporation is anything other than under the direct and complete management of the Thruway Authority, when the chairperson and members of the Corporation are the same individuals who manage the Authority, given that power specifically because of their positions in the Authority and receiving no additional compensation for their management of the Canal Corporation.

With respect to the State of New York, the Court in Buckmann, (supra), found that the Canal Corporation was an entirely separate and distinct entity and, consequently, that the injured worker could bring suit against the State in its capacity as owner of the property on which the injury occurred. The State of New York’s continued ownership of the assets and property of the canal system is, in fact, mandated by section 1 of Article XV of the New York State Constitution, which provides that the Legislature “shall not sell, abandon or otherwise dispose of the now existing or future improved barge canal.” The Legislature may, however, grant “revocable permits or leases for periods of time as authorized by the legislature for the occupancy or use of such lands or structures,” and, in section 2, it is given the power to sell or otherwise dispose of such properties only if they become “no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes.” The continued validity and effect of this constitutional provision was recognized in the 1992 legislative findings which supported transfer of “jurisdiction” over all assets, equipment and property used in connection with the New York State canal system to the Thruway Authority (Legislative Findings of L 1992, ch 766 § 1; amended L 1993 ch 243 § 1, eff. July 6, 1993). The State of New York, therefore, stands in the position of property owner or lessor with respect to the canal system and may be liable for injury to those working on the canals as long as there is a lawful basis imposing liability on the owner of property where such an injury occurred.

As noted above, the claim’s allegation of wrongdoing in the instant action was the defendants’ alleged negligence in failing to provide appropriate flotation devices and/or failing to take other required safety measures, such as supplying railings, tethers and safety boats. By the cross motion, claimant provides more specific allegations indicating that the State’s liability as property owner is premised on its alleged violation of the duties imposed by sections 200, 241(1) and 241(6) of the Labor Law. Defendant opposes the cross motion on the grounds that the State exercised no control over the property or the operation of the locks, thus defeating an action based on Labor Law § 200, and that the activity in which claimant’s decedent was engaged was not a “covered activity” for purposes of either Labor Law § 240 or Labor Law § 241(6).

Labor Law § 200 is a codification of the common law general duty to maintain a safe workplace, and a landowner will not be liable for a breach of this duty unless it has direct supervision and control over the injury-producing activity (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). In the situation presented here, the State of New York did not have sufficient direction, control or supervision of the work being performed by claimant’s decedent so as to make it liable for his injury and death under this provision. The power and authority of the Canal Corporation over all aspects of the planning, maintenance, control, and supervision of the canal system is outlined in section 10 of the Canal Law[2] and they encompass all relevant decisions associated with day-to-day operation of the canals, canal locks, and other canal property. There is nothing to suggest the State of New York was in a position to have direct or even indirect control of the manner in which maintenance and other work was carried out by Canal Corporation employees. “It is settled law that where the alleged defect or dangerous condition arises from the contractor's [or lessee’s] methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” (Lombardi v Stout, 80 NY2d 290, 295 [1992]).

In contrast, it is not necessary to establish that a property owner exercised supervision or control of the injury-causing activity in order for it to be held liable under Labor Law § 240(1) or § 241(6), both of which impose non-delegable duties on a landowner or general contractor. There are other criteria that must be met, however, before liability can be imposed under either of those statutes.

The duty imposed by section 240 (1) requires that workers who are engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” be provided with such “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices” as are necessary to provide proper protection from injury caused by gravity-related hazards (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501; Nieves v Five Boro & Refrig. Corp., 93 NY2d 914 [1999]). In the instant claim, there is no dispute that the death of claimant’s decedent was caused by a gravity-related hazard or that the canal lock qualifies as a “structure” (Lewis-Moors v Contel of New York, Inc., 78 NY2d 942, 943 [1991]). Defendant maintains, however, that the work being performed by Len at the time of his fall was routine maintenance, not “erection, demolition, repairing, altering, painting, cleaning or pointing,” while claimant asserts that Len was engaged in altering the structure, and thus was within the parameters of the statute.
The distinction between performing routine maintenance and making alterations to the structure is often a close one and it is not unusual for courts to reach “inconsistent results on essentially indistinguishable facts” (Joblon v Solow, 91 NY2d 457, 463 [1998]). The necessary determination must be made by focusing on the specific type of activity the worker was performing when he was injured (id. at 465). The most complete description of Len’s work at the time of his fall is provided in the reply memorandum of law supporting claimant’s cross motion:

Mr. Len was in the process of removing the pans and gates that make up the steel structure collectively referred to as the movable dam. . . . [T]he steel gates are part of the complex structure of a roadway and bridge that spans across the Mohawk River. . . . [A]lteration of this structure occurs twice a year; once when the dam is installed and once when the dam is removed.
Lawrence J. Frame, Deputy Director of the Canal Corporation, stated in an affidavit that “the Canal Corporation performs [this] routine maintenance, the lifting and replacing of movable dam gates to allow unobstructed winter ice flow in the spring and fall” (Frame Affidavit, ¶ 5).[3] In other words, claimant’s decedent was engaged in carrying out a semi-annual task, lifting the lock’s gates to allow for ice flow during the winter. Each spring, workers replace the gates so that the canal lock is able to operate for its intended purpose from May to November.

Alteration of a structure, in the context of Labor Law § 240(1), consists of causing a

significant physical change to the configuration or composition of the ... structure” (Joblon v Solow, supra, at 465 [emphasis in the original]), and it must be more than a “simple, routine” activity (id.). In Joblon, an electrician had been hired to install an electric wall clock, an assignment that required him to extend existing wiring from an adjacent utility room through a concrete block wall separating the rooms: tap into an existing power source in the utility room; run wires encased in conduit to the site of the hole in the wall of the utility room; break through the wall separating the rooms with a hammer and chisel, and ultimately direct the wires through the wall. The Court of Appeals held that the work in question did not have to be performed in connection with a building construction job in order for the protections of section 240(1) to attach but that it must – and did in this instance – effect a significant change in the structure and constitute something more than a “simple, routine activity” (id.).

Activities that have been held to qualify as “altering” a structure include installing a commercial air conditioning unit (Sanatass v Consolidated Investing Co., Inc., 10 NY3d 333 [2008]); repairing and replacing air handling units from the World Trade Center (Prats v Port Authority of New York and New Jersey, 100 NY2d 878 [2003]); dismantling a sprinkler system (Wade v Atlantic Cooling Tower Services, Inc., 56 AD3d 547 [2d Dept 2008]); removing air handlers from a building prior to demolition (Panek v County of Albany, 99 NY2d 452 [2003]; rewiring a telephone system (Becker v ADN Design Corp., 51 AD3d 834 [2d Dept 2008]); and attaching a large “For Sale” sign on the side of a building (Buckley v Radovich, 211 AD2d 652 [2d Dept 1995]). In contrast, activities that have been considered routine maintenance or making simple, routine alterations and do not qualify as alteration of a structure include removing vinyl banner attached to building by bolts that remain in place (Maes v 408 W. 39 LLC, 24 AD3d 298 [1st Dept 2005]); removing sign that had been bolted to side of a building (Anderson v Schwartz, 24 AD3d 234[1st Dept 2005]); installing lights for a theatrical production (Lioce v Theatre Row Studios, 7 AD3d 493 [2d Dept 2004]); replacing an advertisement on a billboard atop a building (Munoz v DJZ Realty, LLC., 5 NY3d 747 [2005]); installing a key box on the wall of a vault room (Acosta v Banco Popular, 308 AD2d 48 [1st Dept 2003]); and periodically replacing advertising signs on a building (Cook v Parish Land Co., Inc., 239 AD2d 956 [4th Dept 1997]).

In the instant case, the work being performed by claimant’s decedent is different from all of these examples. Here, the structure in question, accurately described by claimant’s counsel as a “movable dam,” does not have a static, unchanging configuration. It was designed to have gates that open and close during the season when the lock is functioning and to be lifted or removed in the off-season. In other words, it was designed and built to have parts that could be both moved in place and lifted or removed for part of the year. While the configuration and appearance of the lock is changed by each of these planned-for movements, none of them cause an alteration to the nature or function of the structure itself. Buildings are not “altered” in the sense required by the statute when their doors are opened or closed or their awnings are raised or lowered. In each of the configurations, the structure is functioning properly and as it was designed to do. Consequently, because the activity in which claimant’s decedent was engaged at the time of his death did not constitute alteration of a building or structure within the meaning of Labor Law § 240(1), the State of New York may not be liable for his injuries under that statute.

Finally, section 241(6) of the Labor Law provides that 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” and authorizes the Commissioner of Labor to make rules in furtherance of that purpose. To establish liability under this section, a claimant must establish: (1) that the injury occurred in connection with construction, demolition or excavating, (2) that a regulation setting forth a specific positive standard or command was violated, and (3) that such violation caused the injury in question (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 350 [1998]; Ross v Curtis-Palmer Hydro-Elec. Co., supra). Unlike actions based on section 240(1) of the Labor Law, comparative fault applies in actions based on section 241(6).

In the instant claim, the injury and death of claimant’s decedent did not occur in connection with any demolition or excavation work being performed on the canal lock. The only issue, therefore, is whether the work in which claimant’s decedent was engaged could qualify as some aspect of “construction,” as that term is used in section 241(6). The Industrial Code, which establishes the statute’s stated scope (Peluso v 69 Tiemann Owners Corp., 301 AD2d 360 [1st Dept 2003]), contains a fairly broad definition of “construction work”:
All work of the type performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.
(12 NYCRR § 23-1.4[b][13].)

While “maintenance” is included in this definition of “construction work” it is well-accepted that section 241(6) does not encompass situations where the work being performed is considered routine maintenance or replacement of component parts necessitated by ordinary wear and tear (Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2d Dept 2007] [component replacement]; Kirk v Outokumpu American Brass, Inc., 33 AD3d 1136 [3d Dept 2006][replacing worn out parts on production machinery that was shut down for inspection a few times a year]; Maes v 408 W. 39 LLC, supra [removing banner from building attached by bolts]; Detraglia v Blue Circle Cement Co., 7 AD3d 872 [3d Dept 2004][replacing worn parts]; Peluso v 69 Tiemann Owners Corp , supra [examining electrical control panel of malfunctioning elevator]; Molloy v 750 7th Ave. Associates, 256 AD2d 61 [1st Dept 1998][changing elevator contacts and cables, putting new chips in computer boards and painting and cleaning was mere routine maintenance]).

In Nagel v D & R Realty Corp. (99 NY2d 98 [2002]), the Court of Appeals discussed the difference between the type of “maintenance” that would qualify as “construction work” under the Industrial Code, and thus fall within the ambit of Labor Law §241(6), and the routine maintenance that is not contemplated by the statute. Addressing an argument that neither the statute nor the regulations distinguish between routine and nonroutine maintenance, the Court reviewed the history of the legislation and concluded that “the statute is meant to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition.” Consequently, it held that a worker who was injured performing a two-year elevator test could not recover under section 241(6) because the activity in which he was engaged was not connected to construction, demolition or excavation of a building or structure and, thus, “not within the statute's coverage" (id. at 102; see also Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003][Labor Law § 241(6) is “inapplicable outside the construction, demolition or excavation contexts”). In order to come within the ambit of the statute, therefore, it appears that the injured party must be performing “construction work,” which under the regulation may be maintenance work, at a location or site where there is ongoing construction, demolition or excavation activity. Furthermore, the construction work must be carried out in connection with that construction, demolition or excavation activity. In Wolfe v KLR Mechanical, Inc., (35 AD3d 916, 918 [3d Dept 2006]), for example, a worker who was performing maintenance on a labeling machine fell while traveling along a stairway in an existing building. Despite the fact that there was new construction underway adjacent to the stairway on which the accident occurred, recovery under section 241(6) was denied because “the protection afforded by the statute extends only to employees who are engaged or involved in an activity integral to construction work.” Because claimant’s decedent was not working at a location where construction, demolition or excavation was taking place, the cause of action based on section 241(6) of the Labor Law must be dismissed.

Defendant’s motion to dismiss the claim is granted with respect to the Canal Corporation and the Thruway Authority; the claim is dismissed with respect to the State of New York on the ground that there is no basis on which to impose liability against it; and claimant’s cross motion to amend the claim is denied as moot.

January 9, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affirmation of Kent B. Sprotbery, AAG, with annexed Exhibits;

2. Notice of Cross Motion and Supporting Affidavit of Mia D. VanAuken, Esq., with annexed Exhibits and Memorandum of Law;

3. Reply Affirmation of Kent B. Sprotbery, AAG, with annexed Affidavit of Lawrence J. Frame and annexed Memorandum of Law;

4. Affirmation in Opposition of Kent B. Sprotbery, AAG;

5. Reply Affidavit of Mia D. VanAuken, Esq., with annexed Reply Memorandum of Law.

Filed papers: Claim; Answers

[1].In February 2007, claimant commenced two separate actions: Claim No. 113353, a wrongful death action, and Claim No. 113381, for pain and suffering. Defendants interposed an answer to each of these claims. Several months later, the two actions were consolidated into Claim No. 113353.
[2].The statute lists twenty-five specifically enumerated powers, including maintaining the canals, canal terminals and corporation equipment, and it also authorizes the Canal Corporation to “[p]erform such other acts as in its judgment constitute a duty required to efficiently administer the canal system” (Canal Law § 10[26]).
[3].It should be noted that the contrasting characterizations of this activity by the parties - either as “alteration” or as “routine maintenance” – carries no weight.