New York State Court of Claims

New York State Court of Claims
ZWINGE v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, # 2010-010-051, Claim No. 116046, Motion No. M-78665, Cross-Motion No. CM-78950

Synopsis

Labor Law slip and fall dismissed by summary judgment.

Case information

UID: 2010-010-051
Claimant(s): SCOTT E. ZWINGE
Claimant short name: ZWINGE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116046
Motion number(s): M-78665
Cross-motion number(s): CM-78950
Judge: Terry Jane Ruderman
Claimant's attorney: WAYNE P. SMITH, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Rupp, Baase, Pfaltzgraf, Cunningham & Coppola, LLC
Kevin J. Kruppa, Esq.
Third-party defendant's attorney:
Signature date: November 18, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on defendants' motion and claimant's cross-motion for summary judgment and other relief:

Notice of Motion, Attorney's Supporting Affidavit and Exhibits., Memorandum of Law...........................................................................................................................1

Notice of Cross-Motion, Claimant's Supporting Affidavit, Attorney's Answering Affidavit and Exhibits..............................................................................................2

Reply Affidavit............................................................................................................3

Background

This claim arises out of an incident that occurred on August 8, 2007. Claimant was employed by Water Block Roofing and Sheet Metal (the Roofing Co.) to supervise four workers who were installing sheet metal roofing to two toll exiting buildings located at the New York State Thruway Exit 17 Interchange Project. The Roofing Co. was a subcontractor of the general contractor, The Pike Company, Inc. (Pike). Claimant began working at the outdoor construction site in April or May of 2007. During the week before claimant's accident, from August 1 through August 8, the work site was closed because, according to claimant's deposition testimony, it was "pretty sloppy down there," meaning it was "very muddy and wet" (Defendants' Ex. D, p 35). The construction site was "all dirt" and, on the day of the accident, it was "all mud and water" (id. at 49).

The accident occurred when claimant was walking from his truck to the toll exiting building while carrying a seam machine which weighed approximately 60 pounds. Claimant testified at his deposition that he walked right next to the building, in an area used by all the workers. According to claimant's deposition testimony, the path was not a constructed ramp or runway and was not fenced off or marked in any way (id. at 43, 49). Claimant could not pinpoint the exact locations where he had parked his truck and where he had fallen; therefore he indicated the "general area" of these sites on a photograph marked at his deposition (id. at 51-52, Ex. E).

Claimant slipped when he stepped into a muddy puddle and lost his footing on a submerged piece of plywood. At his deposition, claimant described the plywood as "[j]ust a chunk of scrap wood" (id. at 43), "typical construction debris" seen at most construction sites (id. at 47). Claimant testified that the wood was "maybe 3 x 2, 2 x 2, I don't even know" (id. at 86).

Claimant brought an action in this Court against the State of New York and the New York State Thruway Authority (NYSTA) alleging violations of Labor Law 241(6) based upon Industrial Code Sections 23-1.5; 23-1.7(d), (e)(1)(2); 23-1.23. Claimant also alleged a common law negligence claim and a claim under Labor Law 200. After almost seven months of numerous extensions to the discovery schedule order given to enable claimant to conduct non-party depositions of the general contractor, Pike, and the construction manager, Jacobs Engineering, in July 2010, claimant filed his Note of Issue without conducting these depositions.(1) According to the so ordered Stipulation of the parties, all motions for summary judgment were to be made no later than 45 days after the filing of the Note of Issue (Defendants' Reply, Ex. J).

Defendants timely moved for summary judgment dismissing all claims. Claimant then cross-moved to hold defendants' motion in abeyance until all discovery and motion practice was completed in the Supreme Court action. Claimant also cross-moved for summary judgment of his Labor Law 241(6) claim based upon a violation of 12 NYCRR 23.1-7(d).

Defendants' Summary Judgment Motion

Labor Law 241(6) Claims

The Labor Law 241(6) claim based upon 12 NYCRR 23-1.5 General responsibility of employers, as conceded by claimant, is not a specific standard and therefore cannot serve as a predicate for liability pursuant to Labor Law 241(6) (Answering Affidavit, A). Accordingly, this cause of action warrants dismissal (see Pereira v Quogue Field Club of Quogue, Long Is., 71 AD3d 1104, 1105 [12 NYCRR 23-1.5 is not a sufficient predicate for liability pursuant to Labor Law 241[6]).

Claimant also concedes that 12 NYCRR 23-1.7(e) Tripping and other hazards (2) Working areas is not applicable to the facts presented because claimant did not trip and therefore his Labor Law 241(6) claim based upon this section warrants dismissal (Answering Affidavit, D; see Cooper v State of New York, 72 AD3d 633 [12 NYCRR 23-1.7(e)(2) not applicable where claimant alleged that he slipped and not that he tripped]).

Claimant also admits that 12 NYCRR 23-1.23 Earth ramps and runways is "most likely inapplicable here" because claimant testified at his deposition that he was not walking on a roadway, ramp or runway (id. at E; Defendants' Ex. D, p 49). However, claimant argues that perhaps further discovery may create an issue of fact as to whether plywood was used at this site to create a runway. Such argument is speculative and insufficient to defeat defendants' summary judgment motion (see Woodard v Thomas, 77 AD3d 738 [speculation that further discovery may uncover evidence sufficient to defeat a summary judgment motion is not a basis for denying the motion]). Accordingly, the Labor Law 241(6) claim based upon a violation of 12 NYCRR 23-1.23 warrants dismissal (see Erickson v Cross Ready Mix, Inc., 75 AD3d 524 [12 NYCRR 23-1.23 not applicable where injury did not occur on a ramp or runway]).

Similarly, the Labor Law 241(6) claim based upon 12 NYCRR 23-1.7(e) Tripping and other hazards (1) Passageways applies only to "passageways" and the muddy open area where claimant fell does not constitute a passageway (see Castillo v Starrett City, 4 AD3d 320 [roof was an open working area and not a passageway covered by 12 NYCRR 23-1.7(e)(1)]; Rose v A. Servidone, Inc., 268 AD2d 516 [open area construction site on the side of Route 59 is not a passageway under 12 NYCRR 23-1.7(e)(1)]). The arguments of claimant's counsel that the chunk of plywood could have been placed on top of the mud and water to be used by the workers as an elevated walking surface or passageway is speculative and wholly unsupported by the record. Therefore, this cause of action also warrants dismissal.

Defendants and claimant seek summary judgment on the Labor Law 241(6) claim based upon 12 NYCRR 23-1.7(d) Slipping hazards. That section provides:

"[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."

This section is clearly inapplicable to the facts presented as the area where claimant fell did not constitute the kind of passageway or walkway contemplated by this regulation (see McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872, 875 ["the open, ground-level worksite where McKee fell did not constitute a passageway, walkway, or other elevated surface contemplated by 12 NYCRR 23-1.7(d)"]; Roberts v Worth Constr., Inc., 21 AD3d 1074, 1077 [temporary dirt roadway located in an open area at ground level did not constitute a passageway, walkway, or other elevated working surface as contemplated by 12 NYCRR 23-1.7(d)]; Barnes v DeFoe/Halmar, 271 AD2d 387, 388 ["[t]he muddy open area where the plaintiff slipped is not * * * the sort of passageway, walkway, or working area contemplated by 12 NYCRR 23-1.7(d)"]).

Claimant testified at his deposition that the area where he fell was not fenced off or marked in any way and was not a constructed ramp or runway (Defendants' Ex. D, p 49). At his deposition, claimant indicated the general area of his fall on a photograph (Defendants' Ex. E). When he marked the photograph, he stated that it depicted the area as "a lot drier" than on the date of the accident (Defendants' Ex. D, pp 52-53). He was then asked, "[o]ther than it being drier, is it [the ground depicted] different in any other way?" (id. at 53). Claimant responded, "[i]s it different in any other way, no" (id. at 53). He later stated at his deposition:

"I just want to say in this photograph that this is not exactly the condition of this site. This was like way after when I got hurt because this roof wasn't on. I just want to let you know the debris, it was a little bit heavier around in this area"

(id. at 81).

In opposition to defendants' motion for summary judgment, claimant submits his affidavit wherein he states that his fall occurred "about 25 feet from the job site" when he was walking along the "well established pathway" (Claimant's Affidavit, 2). The affidavit refers to the accident site as occurring along "the commonly designated and well worn walkway between the parking area nearby and the job site" (id. at 3). Claimant then cites to the photograph marked at his deposition (Defendants' Ex. E). Claimant's affidavit is inconsistent with his deposition testimony. Specifically, he was asked at his deposition if the path was marked in any way and claimant responded, "[t]here was no markings at all, no. It was basically the only way you could walk to get to your vehicle because of [the] forms and foundations and piers and pillars and various things * * * that you would have to go around to get where you have to go" (Defendants' Ex. D, p 44).

Claimant's affidavit at 6 also states that when he marked the photograph at his deposition, he "made clear that the photograph must have been taken sufficiently long after the date of the accident that it no longer showed the previous pathway because the surrounding dirt around the toll booth at Exit 17 had been regraded and the dirt had long since dried out after more proper grading and fill material was brought in to control the rain runoff than had been the case previously on the date of my accident of August 8, 2007." This, however, is unsupported by claimant's deposition testimony (Defendants' Ex. E).

Claimant cannot avoid summary judgment by manufacturing an issue of fact in a self-serving affidavit that contradicts his prior sworn testimony given at his deposition (see Rodriguez v Trakansook, 67 AD3d 768; Valenti v Exxon Mobil Corp., 50 AD3d 1382; Karwowski v New York City Tr. Auth., 44 AD3d 826). The photograph depicts an open area and not the sort contemplated by the regulation. Accordingly, based upon the aforenoted analysis, this cause of action warrants dismissal.

Common Law Negligence and Labor Law 200 Claims

Defendants also move for summary judgment dismissing the common law negligence claim and the claim based upon a violation of Labor Law 200. Labor Law 200 is a codification of the common-law duty imposed on an owner or contractor to provide a safe work place for workers at a construction site. The Court of Appeals has held that an implicit precondition to this duty is that the party charged with responsibility have the authority to control the activity bringing about the injury (Comes v New York State Elec.& Gas Corp., 82 NY2d 876, 877). Where the injury stems from a dangerous condition on the premises, rather than the manner in which the work was performed, an owner may be held liable if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it (see Azad v 270 5th Realty Corp., 46 AD3d 728, 730). General supervisory authority for purposes of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224-25).

Claimant testified at his deposition that he, a foreman, never received any instructions or directions from anyone at the NYSTA and that he dealt only with other roofing employees and the general contractor, Pike (Defendants' Ex. D, pp 26-27). Additionally, the deposition of the NYSTA construction supervisor, Darrin Scalzo, indicates that he was not responsible for monitoring the safety of the ground at the site (Defendants' Ex. F, p 13). Rather, the construction manager, Jacobs Engineering, provided inspection staff and monitored the daily operations (id.). Further, Scalzo testified that Pike was responsible for cleaning up debris and managing the ground conditions (id. at 13-14). Scalzo did not deal with Pike; rather Jacobs Engineering supervised Pike (id. at 17).

In opposition to defendants' motion, "claimant would agree that discovery to date would indicate that the general contractor rather than the landowner * * * was in charge and was responsible for cleaning up debris on the site and was primarily responsible for the ground conditions * * * " (Answering Affidavit at 36). Additionally, Jacobs Engineering supervised Pike when it performed work on the ground (id.). Claimant's attorney further states that, "while discovery in our case has made clear to date that the State delegated the day to day supervision of the construction site by contract to the general contractor Pike and also retained the construction manager Jacobs Engineering as its construction manager who actually supervised Pike it may well be determined that the Defendant State herein is entitled to Summary Judgment on the issue but we are not quite there yet until representatives from Pike and Jacobs Engineering are deposed in the Supreme Court action" (id. at 37). Thus, claimant maintains that decision on the common law negligence claim and the Labor Law 200 claim should not be decided until after discovery and motion practice is completed in the Supreme Court action.

As noted above, this Court has given claimant numerous extensions to schedule the non-party depositions; nonetheless he filed his Note of Issue without conducting these depositions. Additionally, claimant's arguments are purely speculative and cannot defeat defendants' summary judgment motion (see Woodard v Thomas, 77 AD3d 738, supra [speculation that further discovery may uncover evidence sufficient to defeat a summary judgment motion is not a basis for denying the motion]). Defendants have made a sufficient showing that they did not exercise any authority or supervising control over claimant or the work site. Accordingly, defendants cannot be held liable under a theory of common law negligence or under Labor Law 200 and these claims warrant dismissal (see Harper v Holland Addison, LLC, 75 AD3d 495).

Accordingly, defendants' motion for summary judgment is GRANTED and Claim No. 116046 is hereby dismissed.

Claimant's Cross-Motion

Claimant opposes defendants' motion for summary judgment and argues that the motion should be held in abeyance until discovery is completed in the related Supreme Court action, brought by claimant in July of this year, and until any and all possible motions and cross-motions, yet to be brought, have been decided by the Supreme Court in that action. Claimant's counsel, who has had numerous extensions to the scheduling order of discovery in this Court, is not persuasive in his arguments to hold defendants' motion in abeyance, based upon what may occur with the discovery and motion schedules in the Supreme Court action. In July 2010, claimant filed his Note of Issue in this Court and commenced an action in Supreme Court. This Court's calendar will not be held in abeyance awaiting what may or may not occur in the Supreme Court action. Moreover, as noted above, claimant's arguments in this vein are not sufficient to defeat defendants' summary judgment motion (see Woodard v Thomas, 77 AD3d 738, supra).

Accordingly, claimant's application to have defendants' motion held in abeyance is DENIED.

Claimant's cross-motion for summary judgment on his claim of liability based upon Labor Law 241(6) and 12 NYCRR 23-1.7(d) Slipping hazards is also DENIED. First, claimant's cross-motion was not timely commenced within 45 days of filing of the Note of Issue (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648). Second, claimant has failed to show that 12 NYCRR 23-1.7(d) is applicable to the facts presented (see above analysis of this section).

November 18, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims


1. In July 2010, claimant also commenced an action in New York State Supreme Court against Pike.