New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2009-036-526, Claim No. 113796, Motion Nos. M-76035, CM-76463


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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
September 18, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this action arising out of an accident at a construction site, claimant moves to strike two affirmative defenses, or in the alternative for leave to amend his claim or to file a late claim, and also to compel discovery.[1] In response, defendant withdraws the two affirmative defenses but opposes claimant’s motion to amend or file a late claim and to compel discovery, and cross-moves for summary judgment. Claimant alleges that on April 9, 2007 he was working as part of a construction crew employed by Defoe Construction (“Defoe”) on a project for the State of New York under the Brooklyn/Queens Expressway on Hamilton Avenue between Mill Street and Centre Street. He was working near a crane being used on the project and was in the process of removing a shoe from beneath one of the crane’s retractable legs when a panel on the crane closed on claimant’s left hand. Claimant alleges that defendant failed, inter alia, to maintain a safe work environment, to ensure that the machinery used on the project was not defective and was safe to operate, to provide protective gear and proper training and licensing for all employees working on the construction project, including those who must operate heavy machinery. Claimant asserts that as a result he sustained serious injuries, including the loss of substantially all of his left hand.

On June 5, 2007, claimant filed a claim essentially alleging he suffered personal injury caused by the acts and omissions of the defendant and he served the claim on June 8, 2007. See Ex. 1 to affirmation of James J. Forde, dated December 18, 2008 (“Moving Affirmation”). Defendant interposed an answer (Ex. 2 to Moving Affirmation) containing nine affirmative defenses, two of which claimant has moved to strike: the seventh, asserting the claim fails to include the particularization required by § 11 of the Court of Claims Act, and the ninth, asserting the claim improperly fails to provide claimant’s counsel’s address. On January 14, 2008, claimant provided defendant with his verified bill of particulars alleging that defendant’s conduct at the accident violated sections 200 and 241 (6) of the Labor Law and sections 23-8.1, 8.2, 8.3, 8.4 and 8.5 of the Industrial Code of the State of New York, 12 NYCRR, Part 23. Ex. 3 to Moving Affirmation. Claimant’s motions to amend or late file seek to add these Labor Law causes of action to his claim, as well as causes of action under Labor Law sections 240, 241, 241 (a) and 242. Claimant also seeks to add to his claim more details relating to the accident, consistent with what he provided in his bill of particulars. The proposed amended claim is Ex. 7 to claimant’s Moving Affirmation.

When claimant served his bill of particulars, he also served on defendant his own demand for discovery and inspection and a demand for a bill of particulars. Although claimant moved here to compel defendant to provide a formal response to his discovery demands, since making the motion it appears defendant has furnished the information sought.

In support of defendant’s cross-motion for summary judgment, it submits an affidavit from Alberto Villaman, a Resident Engineer employed by the contractor hired by defendant to be in charge of inspecting the work done by Defoe “for conformance with design intent.” Mr. Villaman states that “neither myself, nor anyone employed directly by the State to my knowledge directed, controlled or supervised the means and methods of the work performed by Defoe at this site nor did I observe anyone employed by the State perform any actual physical construction work at this site;” also that “[m]y duties were limited to inspecting the work performed by Defoe to determine that it was generally consistent with the plans and specifications of the contract and to determine the percentage completion.” Mr. Villaman further states that “it was my understanding that the State neither owned, operated nor maintained any equipment in connection with this project including any crane utilized on this project. In addition, to my knowledge, the State neither supervised nor employed any operator of any crane utilized on the project, nor was the State to my knowledge aware of any defect or unsafe condition with respect to the use or location of any crane used on this project.” Mr. Villaman states he was not a witness to claimant’s accident.
Claimant’s Motion to Amend

Defendant’s opposition to claimant’s motion to amend cites three grounds: (1) the entire claim should be dismissed because defendant did not direct, supervise or control the activity giving rise to the accident and thus cannot be charged with actual or constructive knowledge of any alleged dangerous condition which gave rise to the accident; (2) claimant cannot now add new and different causes of action to his claim in any event; and (3) the newly-pled allegations lack merit. See Affirmation of David Persky, dated March 23, 2009 (the “Opposition Affirmation”) at ¶ 6.

It is well settled that pursuant to CPLR 3025 (b), leave to amend pleadings shall be freely given absent prejudice or surprise. The court does not agree with defendant’s argument that the Labor Law claims claimant wishes to include are so “new and different” from his original claim and that it is too late to add them because defendant would be unduly prejudiced. The facts of the incident giving rise to the claim were stated in the claim as filed two years ago on June 5, 2007. Defendant was given adequate notice and the opportunity to investigate what happened. Claimant’s bill of particulars, dated January 14, 2008 and filed more than a year ago, amplified his claim with citations to substantially the same Labor Law sections he now sets forth in his proposed amendment.

Defendant also argues, however, that permission to add these Labor Law claims at this time should not be granted because the claims lack merit. The court thus examines whether the proposed amendments state causes of action or must be dismissed as matter of law.

Defendant argues the proposed § 200 claim should be not be permitted because defendant “was not directing, supervising or controlling the activity giving rise to the accident” nor did defendant have actual or constructive notice of the dangerous condition which caused the accident. Opposing Affirmation, ¶10. The affidavit from Mr. Villaman so asserts. Mr. Villaman would have this court believe his duties were confined to inspecting the work performed by Defoe to determine its conformity with the plans and specifications for the job and for percentage completion of the work. Nowhere does he make reference to his responsibility to conduct safety inspections. Yet claimant points to two documents, daily Journals dated April 3, 2007 and March 26, 2007, which suggest that Mr. Villaman’s responsibility (and the State’s) was broader then he recounts, in that he was responsible for aspects of safety at the job site as well. See Reply Affirmation, dated April 7, 2009 (“Claimant’s Reply Affirmation”) at ¶ 39 and Exs 2 and 3 annexed thereto. On April 3, 2007, several days before the accident, Mr. Villaman issued a “stop work” order due to an accident at the job site involving a painting subcontractor, and then issued a “stand down” order until a revised safety plan could be developed “and approved”. Earlier, on March 26, Mr. Villaman directed the contractor to remove loose barrels at the site. According to the Journal for that day, following a crane accident, another State representative was called in to visit the site and take pictures.

The court is cognizant of case law holding that the State’s “general supervisory” authority to observe and report safety violations to the contractor, or to issue a stop work order, are insufficient in themselves to sustain a Labor Law § 200 claim (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]); Custer v Cortland Housing Authority, 266 AD2d 619 (3d Dept 1999); Wood v State of New York, 2 Misc 3d 931 [Ct Cl 2003]). But there is a discrepancy here between Mr. Villaman’s affidavit which does not mention any safety responsibilities and the documents themselves which show the State was involved with this area in some way. There appears to be an issue of credibility which, in turn, raises an issue of fact as to how actively involved was the State in controlling safety at this construction site. At this stage, then, defendant has not carried its burden of making a prima facie showing that it had no authority to control the activity which brought about claimant’s injury. See Bornschein v Shuman, 7 AD3d 476, 479 (2nd Dept 2004). Claimant may amend his claim to assert a claim under Labor Law § 200.

Claimant also seeks to assert a claim under Labor Law § 241(6) which defendant opposes because claimant has not cited to any New York State Industrial Code provisions which specifically apply to the facts of this accident.[3] The statute provides, in relevant part:
All contractors and owners and their agents, . . . when constructing . . . buildings . . ., shall comply with the following requirements: . . . (6) All areas in which construction . . . 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 . . . shall comply therewith.

Labor Law § 241 (6). To succeed on a § 241 (6) claim, a plaintiff must demonstrate a violation of specific rules and regulations promulgated by the Commissioner of the Department of Labor (the “Industrial Code”) (see 12 NYCRR Part 23 et seq. See Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 502 [1993]). The regulations that are relied upon must “mandat[e] compliance with concrete specifications”; alleged violations of regulations that merely “establish general safety standards” are not actionable under § 241 (6). Id. at 505 (dismissing Section 241 (6) claim premised on alleged violation of regulation requiring “proper scaffolds”); see also id. at 502 (“allegations . . . which rely on claimed failures to measure up to such general regulatory criteria as ‘adequate,’ ‘effective’ and ‘proper,’ are not sufficient to give rise to a triable claim for damages under Labor Law § 241 (6)”). Lastly, the violation must be a proximate cause of the injury or a substantial factor in bringing about the injury-causing event. See Misirlakis v East Coast Entertainment Props., 297 AD2d 312, 312-13 (2d Dept 2002); Locicero v Princeton Restoration, Inc., 25 AD3d 664, 666 (2d Dept 2006).

Claimant relies on various subsections of subpart 23-8 of the Industrial Code relating to mobile cranes. See Ex 7 to Moving Affirmation. In his motion papers, claimant cited three Industrial Code subparts as a basis for his §241(6) claim: §23-8.2 entitled “Special provisions for mobile cranes,” §23-8.1 entitled “General provisions” relating to mobile cranes, and §23-8.5 entitled “Special provisions for crane operators.” On oral argument, however, counsel for claimant focused on § 23-8.2 (a) which requires monthly inspections of a mobile crane and § 23-8.2(b) (2) (iii) which requires that where “outriggers” are involved, as alleged in this case, each outrigger must be visible from its “actuating location”. The court sees no nexus between the inspection regulation and what happened here. But the outrigger regulation dictates a closer look. Claimant’s allegation in his proposed amended claim describes the accident here in relevant part as follows:
At the time the accident took place at the above and below described location, the claimant was attempting to remove a shoe from beneath an outrigger on a mobile crane/cherry picker that had been utilized to move bundles of rebar. The claimant and his fellow workers were finished using the mobile crane/cherry picker for the day, and it was the intention of the crew and crane operator to remove the”shoes” from the outriggers so the outriggers could be retracted into the machine.

The side of the crane/cherry picker where the claimant was working was positioned dangerously close to a fence/wall, giving only 18"-24" of clearance for the claimant to work between the crane/cherry picker and the fence/wall. The ground beneath the crane/cherry picker was covered with construction debris and not level, and . . . did not provide a suitable walking surface for the claimant to maintain his balance in the limited clearance space in which he had to squeeze to remove the shoe from the ground. In addition, the improper positioning of the crane did not permit the operator of the crane to have a clear view of the claimant as the claimant attempted to remove the shoe.

In order to keep his balance in the limited area of clearance provided by the improper placement of the machine, and because of the unlevel and unsuitable surface for the placement of such footing for a machine utilizing such outriggers, and because of the presence of excessive construction debris, the claimant was forced to place his hand directly on the crane/cherry picker in an area where there was an open panel approximately 12" x 12" in dimension that would open and close to allow the hydraulic legs of the outriggers to extend and retract into the machine. With his hand in this position, the panel slammed closed on the claimant’s left hand causing the loss of substantially all of the left hand.

Ex 7 to Moving Affirmation.

Claimant argues that these facts are quite similar to those in Catarino v State of New York, 55 AD3d 467 (1st Dept 2008) where a different regulation was at issue, i.e. § 23-8.1(f)(5). In Catarino, claimant was working with a crane on a construction site and stood on top of a concrete box that had been unloaded by the crane from a flatbed truck. Claimant put his right hand on the cables between the crane’s hook and the cable block for balance, and used his left hand to disconnect the hook from the cables affixed to the box. Just then, the crane operator started reeling in the cable and claimant’s right hand was pulled into the cable block and crushed. The First Department affirmed the Court of Claims’ grant of partial summary judgment for the claimant, predicated on the above-cited Industrial Code section. It provides that cranes shall not hoist, lower, swing or travel when anyone is located on the hook. Claimant explains that the facts here mirror those there. Claimant here, for balance, rested his hand in an open panel into which the outrigger retracts. The crane operator then activated the retraction which caused the door to the panel to move and thus crush claimant’s hand. Unlike the regulation in Catarino, however, which prohibited the crane operator from reeling in the cable because claimant’s hand was resting on the hook, the regulation claimant relies on here simply provides that each outrigger on a crane must be visible from the “actuating location”. Counsel for claimant asserted on oral argument, without any cited authority, that the quoted words mean the operator’s cab. His claim is that had the operator been able to see where claimant’s hand was, he would not have started to retract the outrigger. Claimant cites no case interpreting the regulation to support his theory of the violation. Nor does he offer any expert affidavit to explain how this regulation is aimed at preventing what happened here. Just by reading this regulation, the court is not persuaded that claimant’s interpretation of what the regulation means and what it is intended to do is correct. It seems that the regulation may be aimed at assuring visibility of the footing of outriggers from their “actuating location” so that the crane can be so maneuvered until all of its outriggers are firmly planted on the ground. At this point, then, the court is not persuaded that a cause of action under § 241 (6) exists as to permit the amendment. The motion to add a § 241 (6) claim is denied without prejudice. If claimant can come forward with persuasive evidence of his interpretation of the regulation, the court is willing to entertain a renewed motion to amend.

Defendant’s Cross-Motion for Summary Judgment

For the reasons set forth herein the court grants permission for claimant to amend his claim to add a claim under §200 of the Labor Law. Claimant shall serve his amended claim within 45 days of the filing of this Decision and Order. The court also finds that a genuine issue of fact exists as to whether defendant was involved in actually supervising the safety of the construction job site, and thus denies defendant’s cross-motion for summary judgment.

September 18, 2009
New York, New York

Judge of the Court of Claims

[1].In connection with this motion and cross-motion, the court considered and read: Notice of Motion, dated December 18, 2008, and Attorney’s Affirmation, dated December 18, 2008 and Affidavit of Merit, sworn to on December 18, 2008, together with exhibits thereto; Notice of Cross-Motion, dated March 23, 2009, and Affirmation in Support and in Opposition, dated March 23, 2009, and Affidavit of Alberto Villaman, sworn to on February 19, 2009, together with exhibits thereto; Reply Affirmation and Affirmation in Opposition to Defendant’s Motion for Summary Judgment, dated April 7, 2009, together with exhibits thereto; and Affirmation in Reply, dated May 4, 2009, together with exhibits thereto.

[2]. Much of the argument and legal authority submitted by claimant and defendant relates to whether claimant has the right to assert a late claim on the assumption that claimant’s original claim lacked the particularization required by § 11 of the Court of Claims Act. In defendant’s last submission, however, it withdrew its affirmative defense that the claim lacked the requisite particularization. See Affirmation in Reply by David Persky, dated May 4, 2009 (“Defendant’s Reply Affirmation”), ¶ 18. Thus, there is no longer any issue whether the original claim is jurisdictionally defective. Accordingly, the court will address the issue of whether claimant may amend his claim and need not address the issue of leave to file a late claim because claimant’s motion for leave to file a late claim now is rendered moot. Defendant also has withdrawn its ninth affirmative defense that claimant’s claim failed to provide claimant’s counsel’s address (Id.), so claimant’s motion to strike this affirmative defense also is moot.

[3]. Claimant’s motion papers also sought to assert a claim under § 240(1) of the Labor Law, which applies to both “falling worker” and “falling objects” cases. On oral argument, however, counsel for claimant acknowledged that claimant did not fall and nothing fell on him and that without these elements no § 240 (1) claim may be brought. Accordingly, the application to assert a § 240 (1) claim is deemed withdrawn.