ARAGONA v. THE STATE OF NEW YORK , #2009-033-356, Claim No. 114431, Motion No.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
Hofmann & AssociatesBy: Paul T. Hofmann, Esq.
Betancourt, Van Hemmen, Greco & Kenyon,
LLCBy: Ronald Betancourt, Esq. and Virginia A. Harper, Esq.
September 21, 2009
See also (multicaptioned
This claim arises from injuries sustained on October 16, 2006, when Gaynor
Aragona (hereinafter "claimant") tripped and fell at a construction site while
walking with a construction form. The accident took place at the Wantagh State
Parkway Bridge, Wantagh, New York. The claim alleges a violation of Labor Law
§§ 241(6) and 200
Defendant moves summary judgment pursuant to CPLR
Claimant’s work area was on a
The witnesses testified that on
the edge of the flexi-floats were eye hooks also known as pad
As a result of the two barges being
secured together, there was a pad eye in the middle of the deck. The pad eye
was used to secure equipment and materials to the barge to prevent them from
falling overboard and to secure them overnight. Claimant indicated he was
responsible for the material placement on the flexi-float. Claimant indicated
that a ramp could have been built over the pad eye but was not. Claimant also
testified he asked to remove the pad eye, but there were no torches handy to
burn it from the barge.
On the day of his injury, claimant was involved in cutting wood to be used to
build concrete forms. Claimant would then move the forms and stack them. As
claimant was moving a form, he tripped on the pad eye. Claimant injured his arm
as he fell against other forms and felt his arm get yanked.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v
Scally, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as a
matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77
Labor Law §241(6) states
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.
In Rizzuto v L.A. Wenger Contracting Co. Inc., 91 NY2d 343, 348, the
Labor Law 241 (6), by its very terms, imposes a nondelegable duty of reasonable
care upon owners and contractors "to provide reasonable and adequate protection
and safety" to persons employed in, or lawfully frequenting, all areas in which
construction, excavation or demolition work is being performed (see also,
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Long v
Forest-Fehlhaber, 55 NY2d 154, 160, rearg denied 56 NY2d 805;
Allen v Cloutier Constr. Corp., 44 NY2d 290, 299-300, rearg denied
45 NY2d 776). Indeed, the history underlying section 241, as amended,
clearly manifests the legislative intent to place the "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
407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44
NY2d, at 300, supra).
To establish liability under Labor Law §241(6), Rizzuto stated
Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. (supra), we
refined "the standard of liability under section 241 (6) by requiring that the
rule or regulation alleged to have been breached be a " 'specific, positive
command' " (81 NY2d, at 504, supra), rather than a " 'reiteration of common-law
standards' " which would merely incorporate into the State Industrial Code a
general duty of care (id.). We distinguished between Code provisions
"mandating compliance with concrete specifications and those that establish
general safety standards" ( id., at 505), cautioning that any other rule
would permit recovery under section 241 (6) against a nonsupervising owner or
general contractor merely by application of broad, nonspecific regulatory
language and "would seriously distort the scheme of liability ... that has been
developed in our case law" ( id., at 504).
From the evidence and arguments presented, it is clear that no significant
issue of fact exists to prevent the Court from granting summary judgment. The
argument between the parties is the interpretation over the applicable
industrial code. Claimant cites 12 NYCRR §§ 23-1.7(e) and
12 NYCRR §23-1.7(e) states
(e) Tripping and other hazards. (1) Passageways. All passageways shall be kept
free from accumulations of dirt and debris and from any other obstructions or
conditions which could cause tripping. Sharp projections which could cut or
puncture any person shall be removed or covered.
(2) Working areas. The 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 and from sharp projections insofar as may
be consistent with the work being performed.
Claimant must show he tripped in a passageway or he tripped in the work area
over dirt, debris, scattered tools, construction materials or sharp projections.
According to claimant and the witnesses, the deck of the barge was an open
area. Materials would be stacked and people could walk between stacks.
However, the stacks of material would be depleted, replaced and depleted on a
regular basis. In addition, the location of the material could and did change.
Claimant relies on Rosenberg v Krupinski Gen. Contrs., 284 AD2d 523 and
McDonagh v Victoria’s Secret, Inc., 9 AD3d 395. The courts in
these cases denied summary judgment because there was a factual question as to
the location of the accidents. It was unclear if plaintiffs fell in
corridors/passageways or in the open floor area.
There is no such issue in the present case. There is no permanence to
claimant’s alleged passageway. This “passageway” is merely
space between piles of materials placed on an open area. As the condition is
transitory, the Court cannot find the open deck to be a
The pad eye does not fall within any of the conditions set forth in 12 NYCRR
§23-1.7(e)(2). The pad eye is part of the barge. It is clearly not dirt
or debris - it is a permanent fixture. Claimant testified the pad eye is
neither a tool nor construction material. Finally, as seen in claimant’s
exhibits (Exhibits 3 - 8), the pad eye is not a sharp projection, it is rounded.
The Court finds no violation of 12 NYCRR §§ 23-1.7(e).
The Court turns its attention to 12 NYCRR § 23-2.1, which states:
(a) Storage of material or equipment.
(1) All building materials shall be stored in a safe and orderly manner.
Material piles shall be stable under all conditions and so located that they do
not obstruct any passageway, walkway, stairway or other thoroughfare.
(2) Material and equipment shall not be stored upon any floor, platform or
scaffold in such quantity or of such weight as to exceed the safe carrying
capacity of such floor, platform or scaffold. Material and equipment shall not
be placed or stored so close to any edge of a floor, platform or scaffold as to
endanger any person beneath such edge.
(b) Disposal of debris. Debris shall be handled and disposed of by methods that
will not endanger any person employed in the area of such disposal or any person
lawfully frequenting such area.
The pad eye is not material to be store, rather it is a permanent part of the
barge. In fact, it is used to tie down and secure equipment. As previously
stated, the pad eye is not debris. The Court finds no violation of 12 NYCRR
§ 23-2.1. Thus, the Court must dismiss the cause of action under Labor Law
Labor Law §200 is the codification of the common law duty of an owner and
contractor to maintain a safe work place for the protection of workers (Jock
v Fien, 80 NY2d 965; Romang v Welsbach Elec. Corp. 47 AD3d 789).
Liability will not attach to an owner absent some showing of supervisory control
over the workers (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494;
Lombardi v Stout, 80 NY2d 290; Angelucci v Sands, 297 AD2d 764).
Defendant must have actual supervision and control over the workers activity.
General supervisory control and to ensure compliance with safety measures are
not enough to impose liability (Damiani v Federated Dept. Stores, Inc.,
23 AD3d 329; see also, Hoelle v New York Equities Co., 258 AD2d 253;
Destefano v City of New York, 10 Misc 3d 508).
There is no showing defendant had any direct supervisory control over claimant.
The Court must dismiss the cause of action pursuant to Labor Law
Based upon the foregoing, defendant’s motion for summary judgment is
granted and the claim is dismissed.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
.As per defendant’s Memorandum of Law in
Support of Motion for Summary Judgment, claimant abandoned any cause of action
previously claimed pursuant to Labor Law Section 240. In reviewing
defendant’s Exhibit I, the Court finds the Labor Law Section 240(1) claim
was abandoned by claimant and is dismissed.
.The following papers have been read and
considered on defendant’s motion: Notice of Motion for Summary Judgment
dated June 16, 2009 and filed June 22, 2009; Affirmation of Virginia A. Harper,
Esq. with annexed Exhibits A-K dated June 15, 2009 and filed June 22, 2009;
Memorandum of law in Support of Defendant State of New York’s Motion for
Summary Judgment dated June 19, 2009 and received June 22, 2009; Affidavit of
Paul T. Hofmann, Esq. with annexed Exhibits 1-8 sworn to July 6, 2009 and filed
July 9, 2009; Brief in Opposition to Motion for Summary Judgment of Paul T.
Hofmann, Esq. dated July 6, 2009 and filed July 9, 2009; Reply Memorandum of Law
in Support of Defendant State of New York’s Motion for Summary Judgment
dated July 21, 2009 and received July 21, 2009.
.According to the witnesses’ testimony,
the “flexi-float” was two barges fastened together to make one
. The pad eye is shown in claimant’s
exhibits 3 - 8. It is approximately 5" x 5" and 1/4" thick and rounded at the
top. It is welded to the barge and is a part of the barge.