Defendant's motion for summary judgment dismissing claim containing causes of action pursuant to Labor Law § 200 (1) and Labor Law § 241 (6) granted. Defendant demonstrated its lack of authority to supervise or control the injury-producing work, and that there was not a violation of a provision of the Industrial Code or that any such violation was a proximate cause of claimant's injury, and claimant did not raise a triable issue of material fact in opposition to the motion.
|Claimant(s):||ALFRED J. MARTIRANO III|
|Claimant short name:||MARTIRANO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MORGAN LEVINE DOLAN, P.C.
By: Duane R. Morgan, Esq.
|Defendant's attorney:||GOLDBERG SEGALLA, LLP
By: Jonathan Bernstein, Esq.
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing this claim, which alleges that claimant was injured when an air hose broke free from a jackhammer that claimant was using on the premises of Shawangunk Correctional Facility, where claimant was working in the employ of a contractor. The claim asserts two causes of action asserting that defendant violated Labor Law §§ 200 and 241 (6) and that claimant's injuries were a result of those violations. Defendant's motion for summary judgment asserts that defendant State of New York did not exercise direction or control over claimant's work negating Labor Law § 200 liability, and that the cited provisions of the New York State Industrial Code and the rules of the federal Occupational Safety and Health Administration (OSHA) do not support liability under Labor Law § 241 (6). Claimant opposes the motion on the grounds that correctional staff employed by defendant exercised control at the worksite, and that 12 NYCRR 23-1.10 governs pneumatic tools such as the jackhammer that claimant was using at the time of his accident.(1) For the reasons that follow, defendant's motion for summary judgment will be granted and the claim will be dismissed.
The facts on this motion are not disputed. Claimant's deposition testimony revealed that he was employed by Gady Contracting G.C. Inc. ("Gady"), a subcontractor on a project in a courtyard inside Shawangunk Correctional Facility (CF), a maximum security prison (see Bernstein Affidavit, Exhibit G, at 24, 27; Exhibit J). A chain of command flowed from the owner of Gady to the owner's son, Robby, who was working at the jobsite with claimant, and meetings between Robby, claimant, another worker named Darryl were held each morning or the prior evening to discuss the upcoming work (see id., at 28, 30-32). All of the tools used on the job, including the jackhammer that was used by claimant, belonged to Gady, and all tools and equipment that were used by claimant and his colleagues were checked in and out of the correctional facility by correction officers as a security measure (see id., at 32, 37-39). The jackhammer hose that injured claimant had come loose from the jackhammer the day before claimant's accident. Robby took the hose to be repaired that evening, and brought the purportedly repaired hose back to the jobsite on the day of claimant's accident. Claimant testified that the correction officer inspected the hoses "when they came into the facility to make sure they were the same ones that he was bringing back" (id. at 55). While inspecting them, the correction officer:
"went over the issue the day before with the hose coming loose. He was aware of it. He looked at it to make sure the hoses were different than they were the other day, fixed . . . [claimant] saw him looking at the hose where the piece was loose to make sure that they were fixed . . . He picked the hoses up, turned the hose, looked at the hose. Robby . . . replied to him, I had them all fixed yesterday, serviced, and the corrections officer said, okay"
(id. at 55-56). Claimant testified during his deposition that a correction officer was present at the worksite at all times "overseeing to make sure we were doing what we were supposed to do" (id., at 44).
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 ). A Court's task on a summary judgment motion is issue identification, not issue resolution (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 397, 404 ).
Here, defendant's motion is supported by a number of documents relating to the litigation (Bernstein Affidavit, Exhibits A-F, I), along with documents related to the construction project (id., Exhibits J-L). Also submitted in support of the motion are transcripts of the depositions of claimant and defendant's construction engineer Gene LeFebvre (id., Exhibits G and H), and LeFebvre's affidavit, in which he asserts that neither he nor any agents of defendant provided equipment for the jobsite nor did they provide instruction to or supervision of claimant (see id., Exhibit M). Claimant has offered legal argument in opposition to defendant's motion, but not additional evidence.
Labor Law § 200 (1) is a codification of the common-law duty imposed upon contractors and landowners to provide a safe workplace, so where, as here, the injury arises from "defects or dangers arising from a subcontractor's methods or materials, recovery against the owner . . . cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 ). As distinguished from an injury that is caused by a dangerous condition on the defendant's property, when liability under Labor Law § 200 (1) is asserted against an owner for injury arising from an accident involving the work, it must be shown that the landowner had "the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352  [emphasis in original, internal quotations and citations omitted]; see Comes v New York State Elec. & Gas Corp., 189 AD2d 945, 946 [3d Dept 1993] ["an owner breaches no duty to an injured worker when the claimed defect is not in the land itself but, rather, arises out of a contractor's own methods or negligent acts occurring as a detail of the contractor's work"]; see also Card v Cornell Univ., 117 AD3d 1225, 1226 [3d Dept 2014] ["to impose liability upon a general contractor [or owner] for an injury resulting from a subcontractor's unsafe work practices, there must be a showing of supervisory control and actual or constructive knowledge of the unsafe manner of performance [as compared to] when an injury is caused by a dangerous condition at the job site" (internal citations omitted, emphasis supplied)]).
Here, there is nothing in the documents submitted in support of defendant's motion that demonstrate that defendant had "actual authority to control the activity bringing about the injury" (Rapp v Zandri Constr. Corp., 165 AD2d 639, 642 [3d Dept 1991] [internal quotations and citations omitted]; see Ram v City of NY, 2015 N.Y. Slip Op. 30798[U] [2015 WL 24133499] [SCt Bronx County, 2015]). LeFebvre's affidavit affirmatively asserts that neither he nor any agent of defendant had such authority, and that their presence at and oversight of the project was to ensure that it was being completed according to specifications (see Bernstein Affidavit, Exhibit H, at 13), and that they had the related authority to stop work (see id., at 58, 59). To the extent that the inspections of Gady's tools and jobsite oversight by defendant's correction officers may have been performed for the sake of worksite safety and not prison security, even "observing work and reporting safety violations does not, without more, constitute authority to supervise, control or direct an injury producing activity" (Decotes v Merritt Meridian Corp., 245 AD2d 864, 865 [3d Dept 1997]; see also Comes v New York State Elec. & Gas Corp.). There is nothing in defendant's submission in support of its motion that raises an issue of fact regarding the exercise by defendant's agents of supervision and control over Robby and claimant's use of the compressor and the jackhammer, the activity that caused claimant's injury (see Rice v City of Cortland, 262 AD2d 770, 772 [3d Dept 1999]), and thus, defendant has established its prima facie entitlement to summary judgment.(2) Claimant has offered no evidence that would raise a triable issue of fact regarding defendant's authority to control claimant's use of the jackhammer, which was the injury producing activity. Thus, that part of defendant's motion seeking summary judgment dismissing claimant's cause of action pursuant to Labor Law § 200 (1) will be granted.
Turning to claimant's Labor Law § 241 (6) cause of action, that section imposes on owners the duty to "comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Law" (Ross v Curtis Palmer Hydro-Elec. Co., 82 NY2d at 501-502; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 349), which are known as the Industrial Code and found in 12 NYCRR part 23. Defendant argues on its motion that claimant's cause of action is not viable as no provision of the Industrial Code applies to the facts of this claim.(3) Here, resolution of this branch of defendant's motion rests upon whether a jackhammer is a "hand tool" within the meaning of 12 NYCRR 23-1.10, and if so, whether the safety requirements for electric and pneumatic "hand tools," including that such tools "shall be equipped with a cut-off switch within easy reach of the operator" (12 NYCRR 23-1.10 [b] ) and that "[e]lectric and hose lines shall be guarded by location or by covering to prevent severe abrasion and to prevent any tripping hazard" (12 NYCRR 23-1.10 [b] ) apply to the facts of this claim.(4) Defendant also asserts that claimant's injury was not caused by a severe abrasion or a tripping hazard.
At his deposition, claimant testified that on the day prior to his accident, the air compression hose attached to the jackhammer disconnected from the jackhammer, swung about, and grazed claimant's neck (see Bernstein Affidavit, Exhibit G, at 40-41). Claimant noticed that a fitting on the jackhammer looked loose (see id., at 42-43) and that Robby had the hoses repaired the night before claimant's accident (see id., at 54). Claimant did not recall which of two jackhammers or which of several compression hoses he was using at the time of his accident (see id., at 60), but the hose was caused to whip around and strike claimant's left knee when the fitting between the hose and the jackhammer he was using came apart (see id., at 61, 69).
The parties dispute whether a jackhammer is a "hand tool" within the meaning of 12 NYCRR 23-1.10 - defendant asserts that claimant testified that a jackhammer is not a hand tool, and claimant cites a decision of Supreme Court, Bronx County stating that a jackhammer "is characterized as a hand tool in Industrial Code § 12 NYCRR 23-1.13 (b)(4)1" (see Ram v City of New York, at *6). Neither of these sources of authority is persuasive, as claimant simply responded "I don't think so" when asked generally whether a jackhammer is a hand tool (see Bernstein Affidavit, Exhibit G, at 110), and the provision of the Industrial Code to which the Ram decision cites is addressed to a different Industrial Code section relating to hazards of electrocution, not the safety of hand tools, and the Court has found no other authority on the issue. While it appears that a jackhammer may well be a hand tool within the meaning of 12 NYCRR 23-1.13 because it is operated by hand and because it may be a pneumatic tool that may have hose lines as addressed in 12 NYCRR 23-1.10 subsections (b) (1) and (b) (2), respectively, that question need not be decided here.
Assuming without deciding that a jackhammer is a hand tool within the meaning of 12 NYCRR 23-1.10, defendant argues that a cause of action under Labor Law § 241 (6), claimant must show not only the applicable provision of the Industrial Code but must also demonstrate a violation of the provision, and that the violation was a proximate cause of claimant's injury (see Defendant's Memorandum of Law, at ¶ I.A, citing Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 348; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-505; and Musillo v Marist Coll., 306 AD2d 782, 784 [3d Dept 2003]; see Shields v General Elec. Co., 3 AD3d 715, 718 [3d Dept 2004] [ a claim under Labor Law § 241 (6) requires "proof that the violation of (a) provision (of the Industrial Code) was the proximate cause of any claimed injury"]; see also Scribner v State of New York, 130 AD3d 1207, 1210 [3d Dept 2015]; Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1293 [3d Dept 2008]).
As noted above, claimant's injury occurred when the fitting between the jackammer and the air compression hose failed. In opposition to defendant's motion, claimant has not raised any issue of fact regarding whether the jackhammer was not "equipped with a cut-off switch within easy reach of the operator" (12 NYCRR 23-1.10 [b] ) or that the compression hose was not "guarded by location or . . . cover[ed]" (12 NYCRR 23-1.10 [b] ). Moreover, and even assuming that there was not an appropriate cut-off switch and that the compression hose was not appropriately guarded or covered, the proof that is submitted on defendant's motion demonstrates that claimant's injury was not caused by any such violation, and claimant has not raised a triable issue of material fact regarding the proximate cause of his injuries. Thus, defendant is entitled to summary judgment on claimant's cause of action pursuant to Labor Law § 241 (6).
In sum, defendant has demonstrated by proof in admissible form that defendant did not control the performance of claimant's tasks, and that there was not a violation of an applicable provision of the Industrial Code or that any such violation was a proximate cause of his injury. Accordingly, it is
ORDERED, that defendant's motion number M-89622 for summary judgment is GRANTED, and claim number 124393 is DISMISSED in its entirety.
July 7, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated December 12, 2016;
(2) Affidavit in Support of Jonathan M. Bernstein, Esq., sworn to December 8, 2016,
with Exhibits A-M;
(3) Memorandum of Law, dated December 12, 2016;
(4) Memorandum of Law in Opposition to Respondents' [sic] Motion for Summary Judgment,
dated March 2, 2017;
(5) Reply Affidavit of Jonathan M. Bernstein, Esq., sworn to March 3, 2017;
(6) Reply Memorandum of Law, dated March 3, 2017.
1. Claimant also argues that defendant has failed to meet its burden on a summary judgment motion because defendant's "recitation of the facts is based entirely on an attorney's affirmation" (Claimant's Memorandum of Law, Point III, p.8). This argument is completely misplaced, as defense counsel's statement of facts in his affidavit merely summarizes facts that are set forth in defendant's exhibits that are in admissible form, including the pleadings, claimant's bill of particulars, and transcripts of sworn testimony given in depositions, along with a sworn affidavit of a construction engineer employed by defendant.
2. The parties dispute whether defendant had prior notice - actual or constructive - of the alleged defect in the connection between the jackhammer and the hose. Inasmuch as there is no issue of fact regarding defendant's lack of authority to supervise and control claimant's use of the jackhammer, no duty to protect claimant from that defect has been shown, and thus, whether defendant's agents had notice of the defect is not a material issue on this motion.
3. Defendant asserts arguments addressed to the applicability of five different sections of the Industrial Code - 12 NYCRR 23-1.5, 21-1.10, 23-9.2 (a), 23-2.2, and 23-1.8 - that were asserted in the claim or claimant's bill of particulars (see Bernstein Affidavit ¶¶ 21-29; Defendant's Memorandum of Law, ¶ I.A). Claimant defends the motion with arguments addressed exclusively to the applicability of 12 NYCRR 23-1.10, which the Court deems to be a concession that the four other sections are inapplicable.
In addition, defendant correctly contends that alleged violations of OSHA do not provide a basis for liability on a cause of action pursuant to Labor Law § 241 (6) (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 351, fn), and claimant does not argue otherwise.
4. Inasmuch as 12 NYCRR 23-1.10 (a) is addressed to unpowered hand tools, it is clearly inapplicable to a jackhammer, as is 12 NYCRR 23-1.10 (b) (3), which addresses the grounding of electrical hand tools.