New York State Court of Claims

New York State Court of Claims
CODY v. THE STATE OF NEW YORK, # 2009-033-601, Claim No. 113570


Case information

UID: 2009-033-601
Claimant(s): THOMAS CODY
Claimant short name: CODY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113570
Motion number(s):
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Hofmann & Associates
By: Paul T. Hofmann, Esq.
Defendant's attorney: Betancourt, Van Hemmen, Greco & Kenyon
By: Todd P. Kenyon, Esq.
Third-party defendant's attorney:
Signature date: December 31, 2009
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a timely filed claim for damages arising from the alleged personal injuries of Thomas Cody (hereinafter "claimant") sustained on April 20, 2006 as a result of a trip and fall while claimant was working on the Wantagh State Parkway Bridge, Wantagh, New York. A bifurcated trial was held on April 14 and 15, 2009.

Claimant testified that on April 20, 2006, he was working as a carpenter for Modern Continental. Claimant is a union carpenter and had been employed on this job since December 2005. Claimant was in a crew of two carpenters, two dockbuilders and an apprentice. According to claimant, he was putting together forms for concrete. Claimant would cut lumber and use it to brace the forms and hold them in place as concrete was poured into the forms. At various times, claimant was also involved in stripping the forms.(1)

On April 20, 2006, claimant began his work day at 7:00 a.m. He was working on Pier 5 (claimant's Exhibit 1). On this day, concrete was being delivered to pour a wall. The forms were in place. According to claimant, he was to tighten the bolts on the forms, brace the forms and make sure everything was plumb (claimant's Exhibit 4). He would be working on the side of the wall closest to the water, which he needed to access by climbing over the wall. Claimant went up onto the wall by means of a ladder made by one of his coworkers. During the time claimant was on this side of the wall, he was not aware of what activities were taking place on the other side of the wall. Claimant went to the other side of the wall shortly after his work day began at 7:00 a.m. He did not come back until approximately 9:15 a.m. for his coffee break. Claimant descended on a ladder and as he stepped off the bottom rung, he twisted his leg on a 2 x 4 piece of wood. Claimant testified he had no idea how the wood got there. Claimant said the area where he stepped was a mess. He saw the 2 x 4, some nuts and washers, and some heavy plastic. It did not look the same as when claimant first went to the other side of the wall.

On cross-examination, claimant said he looked to each side, as best as he could, as he descended the ladder. He said he did not look behind or directly down at the foot of the ladder. According to his deposition testimony, claimant was unaware of anyone stripping forms on the date of his incident. At trial, he testified he presumed the debris was from stripping. Claimant did state he asked one of his coworkers to cut some braces for him but not many.

Gaynor Aragona (hereinafter "Aragona") testified on behalf of claimant.(2) He testified he worked in a crew with claimant. Aragona worked on the bench, meaning he worked the table saw and cut the wood for his crew. On April 20, 2006, Aragona was working on the table saw. According to the witness, it was not near where claimant was working. The witness was not sure what work claimant was doing on the incident date. Aragona testified as to the pictures he took (claimant's Exhibits 1 - 15). In claimant's Exhibit 4, the witness indicated there were bridge brackets near the base of the ladder. These are used for scaffolding to work on the wall.

Aragona testified the area by the ladder was a mess on April 20, 2006. He testified he and others were stripping some of the bracing from one of the other sides of the forms. However, during cross-examination, Aragona acknowledged his previous deposition. At his deposition, the witness indicated no stripping had gone on during the morning of claimant's accident. Any stripping being done on this day was not the section where claimant was working. Rather any stripping would have been done on a nearby section.

Aragona testified anyone could have put the 2 x 4 claimant tripped on at the foot of the ladder. He agreed it could also have fallen from the form. The witness testified the time leading up to the pouring of concrete can be chaotic - a "Chinese fire drill" (Aragona p. 64). On April 20, 2006, bracing was still being done in anticipation of the concrete being poured on that day.

Alex Galbraith (hereinafter "Galbraith") testified for claimant. The witness was working close to where claimant fell. He heard claimant fall and turned and saw him on the ground. Galbraith did not remember exactly what he was doing that day (Galbraith p. 124) but testified he did things like layouts of forms and stripping. The witness testified the area where claimant fell was a "slop".

On cross-examination, Galbraith acknowledged many inconsistencies with his trial testimony. At his deposition, Galbraith initially confused this with an accident at Shea Stadium. In addition, Galbraith testified the accident was in the afternoon and he stayed with claimant about an hour after he fell. Galbraith still contended at trial he stayed with claimant for a while. At his deposition, Galbraith also was inaccurate about many of the things being done on the job at the time of the accident. At trial, the witness testified the photographs helped to refresh his recollection. The Court notes, however, references were made to markings the witness made on a photograph at his deposition (claimant's Exhibit 15).

Michael Harrison (hereinafter "Harrison") testified for claimant.(3) Harrison was working on a different pier than claimant and did not observe claimant's accident. He saw claimant at the morning break and heard him telling the foreman about the accident. According to Harrison, claimant was stripping forms just prior to the accident. At some point later on April 20, 2006, the witness saw the area where claimant fell. When the witness observed the area, he stated it was messy. The Court notes it was later in the day and with other work done. The witness testified a deck area gets very messy when forms are being stripped.

Raymond Bonne (hereinafter "Bonne") testified as claimant's construction expert. The witness opined there was a general lack of housekeeping on the Wantagh job which caused a hazardous condition to exist. According to Bonne, the area where claimant's accident occurred was a passageway as defined by the New York Code of Rules and Regulations (hereinafter "NYCRR"). As a passageway, the witness testified nothing should have been left in the passageway. In addition to being a passageway, Bonne stated the area where claimant fell was also a working area as defined in the NYCRR. The expert's opinion was that nothing was done correctly on this job site as to cleaning this area or in storing building materials.

On cross-examination, Bonne testified claimant could have looked down at the deck by the ladder prior to descending. In addition, claimant could have looked where he was stepping as he stepped from the ladder to the deck.

Defendant produced two inspectors, Matthew Natividad and Eduardo Corbuz, and the engineer in charge, Edmund Donovan. Neither of these witnesses were aware of the claimant or his accident. The inspectors testified they had no connection with the contractors' workers. They did not direct their work nor did they assign any work. Inspector Natividad described the construction site like any other site in terms of housekeeping. He would not term the condition of the deck as hazardous.

Defendant's last witness was John Coniglio (hereinafter "Coniglio"), a construction safety expert. The witness characterizes the area where claimant fell as a general work area and not as a passageway. The ladder in question was not a dedicated passageway; it could be moved to aid work. Coniglio opined there is no violation of 12 NYCRR 23-1.7(e)(2), even though the witness characterized this as a work area. The witness did not see an accumulation of dirt and debris. The materials seen in the area were consistent with the materials being worked on. While having a swarm of laborers come to an area to clean everything, they cannot be there constantly. The workers have to maintain their own work area to an extent. The witness opined this was still an active work area on the morning of April 20, 2006.

Coniglio saw the section of NYCRR dealing with inspection during concrete pouring and stripping as not applicable. The concrete was not being poured at the time of claimant's accident, thus the inspection was unnecessary. While stripping was going on at various locations, it was not going on at claimant's location.

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 Contr. Co., 91 NY2d 343, 348, the court held

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).

at 349.

Claimant cites 12 NYCRR 23-1.7(e) (1) and (2). 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.

The Court cannot agree with claimant's expert. The fact that claimant or others traverse this area or use the ladder to get to the top of the wall or to the other side of the wall does not make this area a "passageway". The area where claimant fell is open and has work going on in it. The ladder is also a tool to gain access to a higher elevation to perform work on the wall. Thus, the Court finds claimant has failed to prove he fell in a passageway.

To prevail under 12 NYCRR 23-1.7(e) (2), claimant must show the material he tripped on was not an integral part of the work being performed (O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805; Harvey v Morse Diesel Intl., 299 AD2d 451).

Claimant argues the debris at the base of the ladder came from crews stripping forms and not from anyone preparing the forms for the concrete pour. The Court accepts, based upon the inspectors' reports, forms were being stripped not too far from claimant's location. However, it is impossible to say where the material on the deck came from. Claimant's own witnesses stated the material could have been from the forms claimant was working on. It is possible someone took this material out of the space between the forms. It is possible the material is from a form being stripped, although the Court feels the material is more likely from the forms where claimant and his crew were working.

If there is more than one possible cause of claimant's injury and one of the causes is not proven to be more probable than the others, then defendant cannot be held liable (Ingersoll v Liberty Bank of Buffalo, 278 NY 1). The Court finds no violation of 12 NYCRR 23-1.7(e)(2).

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.

The Court finds this section is not applicable to the case at hand. As previously noted, there is no way to discern how this material ended up beneath claimant's ladder. This was an active and "chaotic", according to claimant's witness, work area. Materials were in use and not ready for storage. The 2 x 4 claimant tripped on could have been put there for someone to add bracing.

Claimant also alleges a violation of 12 NYCRR 23-2.2(b), which states,

23-2.2 Concrete work

(b) Inspection. Designated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete. Any unsafe condition shall be remedied immediately.

The Court finds this section to be inapplicable to the instant claim. No concrete was being poured at the time of claimant's accident. Claimant was on his way to a break. The concrete was poured approximately four hours after claimant's accident.

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-Elec. 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 insure 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.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

December 31, 2009

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. "Stripping" the forms involved removing the bracing and metal forms after the concrete had hardened.

2. Aragona testified he is a client of claimant's attorney for a personal injury matter which occurred at the Wantagh State Bridge.

3. Harrison testified he is a client of claimant's attorney for a personal injury matter which occurred at the Wantagh State Bridge.