New York State Court of Claims

New York State Court of Claims
VERIZON v. THE STATE OF NEW YORK, # 2009-037-503, Claim No. 112333

Synopsis

Case information

UID: 2009-037-503
Claimant(s): VERIZON NEW YORK, INC.
Claimant short name: VERIZON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112333
Motion number(s):
Cross-motion number(s):
Judge: JEREMIAH J. MORIARTY III
Claimant's attorney: Edward C. Cosgrove, Esq.
By: James C. Cosgrove, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. Miller
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 11, 2009
City: Buffalo
Comments:
Official citation: 78 AD3d 1597 (2010)
Appellate results: Affirmed
See also (multicaptioned case)

Decision

Claimant, Verizon New York, Inc. (Verizon), alleges in Claim Number 112333 that on August 31, 2005 employees of the New York State Department of Transportation (NYSDOT) damaged its underground telecommunication line while performing sidewalk repairs on the west side of Hyde Park Bridge in the City of Niagara Falls, Niagara County, New York. The issues at trial were bifurcated and this decision addresses liability issues only.

In addition to documentary and photographic evidence, Claimant presented the testimony of NYSDOT employees Richard G. Hopcia and Thomas V. Lorenzi; Verizon employee Michael B. Mann; and Michael G. Fox(1) , an employee of De-Tech, Inc. (De-Tech). Mr. Hopcia related that he has been employed by NYSDOT for over twenty-four years and is a bridge repair supervisor for Niagara County. He confirmed that on August 31, 2005 a crew of four NYSDOT employees was excavating concrete from a sidewalk on the Hyde Park Bridge when an underground cable owned by Verizon was damaged.

Mr. Lorenzi has been employed by NYSDOT for twenty-four years and is also a bridge repair supervisor, superior in rank and title to Mr. Hopcia. He testified that sidewalk repairs on the Hyde Park Bridge were scheduled for the 2005 construction season and he suspected that there were underground utilities under the sidewalk. For that reason, Mr. Lorenzi marked the area to be excavated and then notified "Dig Safely New York," which is a reference to the one-call notification system established pursuant to General Business Law, Article 36 to protect underground facilities such as telecommunication lines from damage due to excavation and demolition work. Where an underground facility is located within fifteen feet of the proposed work area, upon notification its operator must mark the location of the facility before excavation work can proceed (see General Business Law 764 [3]). As a result of the notification, NYSDOT received responses from Verizon, Niagara Mohawk Power Corporation, Sprint Long Distance and National Fuel Gas (Exhibits 11, 12, 13, 14 and 15). The locate report for Verizon was forwarded to Mr. Lorenzi on June 14, 2005 by De-Tech stating "no conflict, utility," which he interpreted to mean no facilities within fifteen feet of the work area. He confirmed that the commencement of excavation work at the site was delayed until August 31, 2005, the date of this incident.

Michael B. Mann, a field foreman for Verizon in the Niagara Falls area, testified that he visited the site on August 31, 2005 and prepared a damage report (Exhibit 1). As part of his investigation, he observed that there were faded markings on the sidewalk near the damage area but it did not appear that the location of the Verizon underground line had been marked.

Michael G. Fox indicated in his deposition testimony that he was director of quality control for De-Tech, a service provider to the utility industry, whose core business is providing locate services for underground facilities. In 2005, De-Tech was providing locate services for Verizon and received notice of the NYSDOT request to locate underground facilities on Hyde Park Bridge. The request was transmitted to their locate technician in western New York, Matt Crouch, who admittedly mishandled the response by indicating that there was no conflict. While acknowledging the reporting error, Mr. Fox claimed that the technician marked the location of the underground Verizon facilities. Mr. Crouch is no longer employed by De-Tech and did not testify at trial.

Excavation work is governed by statutes and regulations designed to protect underground facilities and which set forth procedures to be followed when engaging in such work. These procedures apply to municipalities which undertake excavation work (see General Business Law 760 [1], [5]; 16 NYCRR 753-1.2 [i], [q]). Section 764 of the General Business Law describes the duties of excavators, in pertinent part, as follows:

"1. No excavator shall commence or engage in any excavation or demolition unless and until timely notice is served of the location and date of the proposed excavation or demolition as provided in this article to operators who maintain underground facilities in the area in which the excavation or demolition is to take place. The provision of such notice to a one-call notification system is deemed to be compliance with this section; and notice to the one-call notification center is notice to each member. Such notice shall be served in accordance with the rules and regulations adopted by the public service commission pursuant to section one hundred nineteen-b of the public service law.

2. Prior to any excavation or demolition, the excavator shall verify the precise location of the underground facilities in a manner set forth in the rules and regulations adopted by the public service commission pursuant to section one hundred nineteen-b of the public service law.

3. An excavator may proceed with such work if he has received notice from each operator notified by the one-call system that it has no underground facility in or within fifteen feet of the proposed work area or that the operator marked any underground facility located in or within fifteen feet of the proposed work area.

4. An excavator engaged in excavation or demolition shall be responsible for protecting and preserving the staking, marking or other designation by the operator until no longer required for proper and safe excavation or demolition work at or near the underground facility, maintain clearance between the underground facility, and the cutting edge or point of any equipment to avoid damage to the underground facility and provide support to and prevent damage to any underground facility or its protective coating, in the means and according to the methods set forth in the rules and regulations adopted by the public service commission pursuant to section one hundred nineteen-b of the public service law."

The regulations provide that excavators must contact the one-call notification system serving the vicinity (in this instance "Dig Safely New York") before commencing or engaging in any non-emergency excavation or demolition (see 16 NYCRR 753-3.1 [a] [1]). The required notice is to be served at least two but no more than ten working days, not including the date of the call, before the commencement date of the excavation or demolition (see 16 NYCRR 753-3.1 [a] [2]). Whenever an excavator postpones an excavation or demolition more than ten working days, the same requirements for notice pertain to the revised commencement date (see 16 NYCRR 753-3.1 [d] [2]). Finally, starting on the stated commencement date given in the notice to the one-call notification system, the excavator shall be responsible for protecting and preserving the staking, marking or other designation until no longer required for proper and safe excavation or demolition work at or near the underground facility (see 16 NYCRR 753-3.5).

Here it is not disputed that NYSDOT notified the one-call notification system in June, 2005 of its intention to excavate in the sidewalk area of the Hyde Park Bridge and that there was no further notice given prior to the commencement of construction on August 31, 2005. It is also clear that the report issued by De-Tech on behalf of Claimant in response to the notification contained false and misleading information (Exhibit 12). What is not clear to the Court from the evidence presented at trial is whether the location of Claimant's underground cable was marked following the notification. Since the photographs introduced into evidence are not conclusive on that issue, the Court credits the testimony of Claimant's employee, Michael B. Mann, who stated that it did not appear to him that the line had been marked.

Defendant, as an excavator, had a duty to avoid damage to the underground facilities owned by Claimant and "[Defendant's] violation of the statute's implementing rules and regulations certainly constitutes some evidence of negligence which may be properly considered by the factfinder" (Watral & Sons, Inc. v OC Riverhead 58, LLC, 34 AD3d 560, 567 [2006]; see Elliott v City of New York, 95 NY2d 730 [2001]; Verizon N.Y., Inc. v Village of Athens, 43 AD3d 526 [2007]). Thus, the Court concludes that Defendant was negligent in failing to notify the one-call notification system of its intention to begin excavation on August 31, 2005, which was more than ten working days after the original commencement date.

The Court also finds that Claimant, as an operator, had statutory duties set forth, in pertinent part, in General Business Law 763:

"2. Upon receipt of the notification provided for by this article either directly from the excavator or from the one-call notification system and pursuant to the rules and regulations adopted by the public service commission pursuant to section one hundred nineteen-b of the public service law, an operator shall advise the excavator in a timely manner of those of its underground facilities that will be affected by the proposed excavation or demolition.

3. The operator shall accurately and with due care designate within a reasonable period of time the location of its underground facilities in the manner and during the time period set forth in the rules and regulations adopted by the public service commission pursuant to section one hundred nineteen-b of the public service law."

The record supports a conclusion the Claimant breached its duties as an operator by failing to provide accurate information regarding its underground facilities on Hyde Park Bridge and by failing to mark the location of such facilities. Under these circumstances, it cannot be said that Claimant was free from negligence in the happening of this incident.

Accordingly, the Court finds the Defendant 35% liable and the Claimant 65% liable for this accident. The Court will schedule a trial on the issue of damages as soon as practicable.

All motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

May 11, 2009

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims


1. The testimony of Michael G. Fox was taken on April 26, 2007, prior to trial. The transcript of his testimony was received into evidence as Exhibit 24 and has been considered by the Court in this decision.