New York State Court of Claims

New York State Court of Claims
BURKE v. THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, # 2018-053-550, Claim No. 126794, Motion Nos. M-92305, M-92306

Synopsis

Defendants' motion to dismiss Labor Law 200 and common law negligence causes of action is granted, as well as claimant's Labor Law 241 (6) cause of action based upon a violation of 12 NYCRR 23-1.8, 23-1.15, 23-1.16, 23-1.17, 23-1.21, 23- 1.21 (b), 23-1.24 and upon OSHA regulations. Defendants' motion to dismiss Labor Law 241 (6) cause of action based upon 12 NYCRR 23-1.7 (b) (1) (i) and 23-1.7 (b) (1) (iii) (b) and (c) is denied.  Claimant's motion for partial summary judgment on Labor Law 240 (1) cause of action is denied as questions of fact exist.

Case information

UID: 2018-053-550
Claimant(s): THOMAS S. BURKE
Claimant short name: BURKE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126794
Motion number(s): M-92305, M-92306
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: WILLIAM SCHWITZER & ASSOCIATES, P.C.
BY: Barry Semel-Weinstein, Esq.
Defendant's attorney: FABIANI COHEN & HALL, LLP
BY: Kevin B. Pollak, Esq.
Allison A. Snyder, Esq.
Third-party defendant's attorney:
Signature date: September 17, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claim no. 126794 arises out of an accident which occurred on February 19, 2015, when claimant Thomas S. Burke was injured while working for DeFoe Construction Corp. (DeFoe) on a project for the New York State Department of Transportation to replace a section of the Major Deegan Expressway where it overpasses the Mosholu Parkway in the County of Bronx, City and State of New York. Claimant alleges that his injuries were caused by the negligence of the State of New York (State), the New York State Thruway Authority (NYSTA) and the New York State Department of Transportation (DOT) as owners of the property in violation of Labor Law 200, 240 and 241 (6). Defendants move by motion no. M-92305 for partial summary judgment dismissing the Labor Law 200 and 241 (6) causes of action. Claimant opposes this motion and moves by motion no. M-92306 for partial summary judgment on his Labor Law 240 cause of action. Defendants oppose claimant's motion.

FACTUAL BACKGROUND

On February 19, 2015, claimant Thomas S. Burke was a Union drill runner employed by DeFoe. According to claimant, a drill runner is someone who drills and chips with a jackhammer.(1) At the time of the accident, Claimant had his OSHA 10 and OSHA 30 certifications. As part of his OSHA 10 training, claimant was instructed in the use of safety harnesses, tie-offs and lanyards and told to always have a tie-off point.(2) Claimant's equipment was provided by DeFoe. Claimant received all of his directions from "George" the DeFoe general foreman.(3)

On the day of the accident, claimant was using a jackhammer to break down one of the two concrete columns that housed the median between the eastbound and westbound lanes of the Mosholu Parkway. The column was about eight to ten feet tall and supported the steel decking below the overpass of the Major Deegan. The area between the two columns formed a pit into which debris would be thrown.(4) Toward the end of the day, claimant was standing with the jackhammer leaning against his pelvis. He intended to store the jackhammer in the pit by handing it to Pauly (Paulo Nogueira), another drill runner, who would put it on his shoulder and carry it down a ladder into the pit. Claimant turned to yell to Pauly when his lanyard wrapped around the jackhammer, causing the 90 pound jackhammer to slip and pull claimant into the pit below.(5)

According to claimant, at the time of his accident there was no safety line to tie-off to as the main safety line had been taken down before the accident in order to remove debris from the pit.(6) According to the affidavit of Paulo Nogueira, he took all of his directions from the DeFoe foreman, George Lepp or from the DeFoe superintendent, Patrick Horton. Mr. Nogueira further stated in his affidavit that when claimant was operating the jackhammer, he tied off to a safety line. As Mr. Nogueira was wrapping up the jackhammer air hose, he heard claimant scream. He saw claimant in the pit and that he was no longer connected to the safety line. When claimant yelled that he was in pain, Mr. Nogueira disconnected himself from the lifeline and climbed down the ladder to assist claimant.(7) According to the affidavit of DeFoe superintendent Patrick Horton, claimant took his directions from the DeFoe foreman, George Lepp, who took his directions from Mr. Horton. Mr. Horton stated in his affidavit that claimant was provided with a safety harness and lanyard which he was wearing after the accident and that there was a safety cable within a few feet of where claimant had been working to which claimant should have been attached. According to Mr. Horton, claimant told him that he had unclipped himself from the cable as it was quitting time and that the handle of the jackhammer caught on one of the straps of the safety harness and pulled him into the pit.(8) Finally, claimant provided a one page affidavit from Paul Pappalardo, a co-worker, who stated that the safety line had been removed to allow the workmen better access to the work area.(9)

LAW

Summary judgment is a drastic remedy and will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]). Mere conclusions, unsubstantiated allegations or expressions of hope, however, are insufficient to defeat a summary judgment motion. (Zuckerman v City of New York, supra at 562).

Initially, defendants moved for summary judgment dismissing all allegations of liability against the NYSTA. The claim(10) alleges that the NYSTA is liable as an owner under the Labor Law. In response to claimant's notice to admit,(11) defendants responded that the NYSTA did not own, control or maintain the Major Deegan Expressway Bridge (I-87) over the Mosholu Parkway, but admitted that the Major Deegan Expressway Bridge was owned by the State of New York. Claimant did not oppose that portion of defendants' motion that sought to dismiss all allegations of liability as against the NYSTA.(12) Accordingly, that portion of defendants' motion seeking to dismiss the entire claim as against the NYSTA is granted.

Labor Law 200 and Common Law of Negligence

Labor Law 200 is a codification of the common law duty of owners and contractors to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). Labor Law 200 provides in relevant part:

"All places to which this chapter applies shall be so

constructed , equipped, arranged, operated and conducted as

to provide reasonable and adequate protection to the lives,

health and safety of all persons employed therein or lawfully

frequenting such places. All machinery, equipment, and

devices in such places shall be so placed, operated, guarded,

and lighted as to provide reasonable and adequate protection

to all such persons."

"An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). An owner will not be found liable where the alleged defect or dangerous condition arises out of the contractor's means and methods of the work being performed and the owner exercised no supervisory control over the operation (Lombardi v Stout, 80 NY2d 290, 295 [1992]). The applicable standard is whether the owner of the property "gave anything more than general instructions as to what needed to be done, as opposed to how to do it" (O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [1st Dept 2006 ], affd 7 NY3d 805 [2006]).

In support, defendants provided an affidavit from Mark McClennan, the engineer in charge on the Major Deegan Expressway Bridge project.(13) According to his affidavit, the DOT retained claimant's employer, DeFoe, as the general contractor on the project. Mr. McClennen further stated in his affidavit that the DOT did not instruct, supervise, or provide any instructions to the claimant or to any DeFoe employee and that DeFoe was responsible for supervising its own employees. Moreover, claimant testified that he received his instructions and directions from "George," the DeFoe foreman on the job and the accident occurred while he was using equipment owned and provided by DeFoe. In that the accident was caused by the manner in which claimant was performing his job and because the manner of the work was supervised and controlled by DeFoe, neither the State nor the DOT is liable under Labor Law 200 or under the common law of negligence. This portion of defendants' motion for summary judgment is unopposed and claimant's counsel specifically noted that claimant does not oppose defendants' motion in this regard.(14) Accordingly, defendants' motion to dismiss all allegations of liability under Labor Law 200 and the claim for common law negligence is granted.

Labor Law 241 (6)

Labor Law 241 (6) provides:

" 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 subsection, 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."

Labor Law 241 (6) imposes a nondelegable duty upon owners and contractors to provide adequate and reasonable protection to workers engaged in construction, excavation or demolition work (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 347 [1998]). In order to prevail on a Labor Law 241 (6) claim, a claimant must establish that the defendant violated a specific as opposed to a general standard of conduct (Ross v Curtis-Palmer Dydro-Elec. Co., 81 NY2d 494, 501-502 [1993]).

In the claim, claimant alleged that the defendants violated section 241 (6) of the Labor Law. In his bill of particulars,(15) claimant alleged that the defendants violated the following sections of the Industrial Code: 23-1.7; 23-1.8; 23-1.15; 23-1.16; 23-1.17; 23-1.21; 23-1. 21 (b); 23-1.24; 23-5.1; 23-5.2; 23-5.3 and 23-5.18. By stipulation dated May 15, 2018,(16) the parties agreed that all claims against the defendants under Labor Law 241 (6) as predicated on the following alleged violations of the Industrial Code: 12 NYCRR 23-1.5; 23-5.2; 23-5.3 and 23-5.18 were discontinued with prejudice.

Defendants allege in their motion papers that all of the remaining Industrial Code sections listed in claimant's bill of particulars were either not applicable or were not violated. In opposing defendants' motion, neither claimant nor his expert, Kathleen Hopkins, addressed Industrial Code regulations: 23-1.8; 23-1.15; 23-1.16; 23-1.17; 23-1.21; 23-1.21 (b); 23-1.24; 23-1.24 or any OSHA regulations, indicating that claimant had abandoned them as a basis of liability (Perez v Folio House, Inc., 123 AD3d 519 [1st Dept 2014]). The only remaining Industrial Code regulations upon which claimant bases his Labor Law 241 (6) cause of action are 12 NYCRR 23-1.7 (b) (1) (i) and 23-1.7 (b) (1) (iii) (b) and (c ).

12 NYCRR 23-1.7 provides in pertinent part:

" 23-1.7 Protection from general hazards.

(a) Overhead hazards.

(b) Falling hazards. (1) Hazardous openings. (i) Every hazardous opening into

which a person may step or fall shall be guarded by a substantial cover

fastened in place or by a safety railing constructed and installed in compliance

with this Part (rule).

(iii) Where employees are required to work close to the edge of such an opening,

such employees shall be protected as follows:

(b) An approved life net installed nt more than five feet beneath the opening;

or

(c )An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage."

Industrial Code 12 NYCRR 23-1.7 (b) (1) (i) requires a "substantial cover"for hazardous openings. Defendants argue that this section of the Industrial Code does not apply as it applies only to hazardous openings, not to elevated hazardous. Thus, when a worker fell while installing windows without a safety device, 23-1.7 (b) (1) (i) was held not to apply as the worker did not fall into a hazardous opening (Boss v Integral Constr. Corp., 249 AD2d 214 [1st Dept 1998]). Claimant argues that this regulation applies as claimant was operating a jackhammer close to an opening, with a free-fall of approximately 10 feet to the ground below. Here, there are simply too many questions of fact to determine on this motion whether or not regulation 23-1.7 (b) (1) (i) even applies to this situation, and if it applies, whether or not the pit around the concrete column could or should have been covered.

Industrial Code 12 NYCRR 23-1.7 (b) (1) (iii) (b) and (c ) require that a laborer who works close to the edge of a hazardous opening be provided with (b) a life net installed beneath the opening or (c) an approved safety belt with attached lifeline secured to a substantially fixed anchorage. Defendants argue that these regulations do not apply as the area around the concrete column was not a hazardous opening and that subsection (b) does not apply as claimant was provided with a harness, lanyard and a tie-off safety line. Claimant argues that the safety line had been taken down before his fall and, thus, he was not provided with any safety device to prevent his fall. Triable issues of fact exist as to whether or not these regulations are applicable and whether or not a safety line or tie-off was available (see Guaman v City of New York, 158 AD3d 492 [1st Dept 2018]).

In support of his opposition to defendants' motion, claimant submits the supplemental expert affidavit of Kathleen Hopkins in which she opines that Industrial Code regulations 23-1.7 (a) (1) (i) and 23-1.7 (b) (1) (iii) (b) and (c ) were violated and were a proximate cause of claimant's injuries.(17) Defendants argue that Ms. Hopkins expert affidavits should not be considered as they are based on speculation, without an examination of the premises or of the equipment provided, fail to address the feasibility of complying with these regulations, and attempt to supplant the Court's obligation to determine, as a matter of law, the meaning and applicability of a regulation. Here, the Court agrees with the defendants to the extent that the expert affidavits of Kathleen Hopkins offer only an opinion on the law and on matters involving a question of law, i.e., the applicability of the relevant Industrial Code regulations. It has been held that "[e]xpert opinion as to a legal conclusion is impermissible" (Colon v Rent-A-Center, 276 AD2d 58, 61[1st Dept 2000]). As a result, for purposes of this summary judgment motion only, even if the Court was to determine that Ms. Hopkins was qualified as an expert, I find that to the extent she offers an opinion as to the applicability of the Industrial Code regulations relied upon by claimant, the opinion expressed does not have any evidentiary value and is thereby without probative value and will not be considered.

Claimant has, however, raised questions of fact sufficient to defeat defendants' motion for summary judgment dismissing the claim based on Labor Law 241 (6) whether predicated on an alleged violation of Industrial Code 12 NYCRR 23-1.7 (b) (1) (i) or on 23-1.7 (b) (1) (iii) (b) or (c). Labor Law 240 (1)

Claimant moves for partial summary judgment (motion no. M-92306) on his cause of action alleging a violation of Labor Law 240 (1), which imposes a non-delegable duty upon owners, lessees, contractors and their agents to provide safety devices that will provide proper protection to workers. In order to establish liability pursuant to Labor Law 240 (1), it has been held that the claimant must demonstrate that there was a violation of the statute and that violation was a proximate cause of his injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). In such instances, the claimant's own negligence does not furnish a defense (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). However, where a claimant's own actions are the sole proximate cause of the accident, there can be no liability. In applying the "recalcitrant worker" defense, the Court of Appeals has held that the controlling question is not whether the claimant was "recalcitrant", i.e., failed to use available safety devices that he was instructed to use, but whether a jury could find that claimant's conduct, rather than any violation of Labor Law 240 (1) was the sole proximate cause of the accident (Cahill, supra at 39-40).

Claimant alleges that he is entitled to partial summary judgment on his Labor Law 240 (1) cause of action because the safety line had been taken down before the accident and there was no alternate anchorage point for him to attach his lanyard to. Defendants submitted sufficient proof to create issues of fact as to whether claimant was a recalcitrant worker by removing the safety harness he had been provided from the safety line and as to whether there was a safety line available for him to tie-off to. As a result of the conflicting evidence, there are issues of credibility and questions of fact to be resolved at trial which preclude the granting of summary judgment to the claimant on his Labor Law 240 (1) cause of action (Valente v Lend Lease (US) Constr. LMB, Inc., 29 NY3d 1104 (2017).

Based on the foregoing, it is hereby

ORDERED, that defendants' motion no. M-92305 is granted in part, to the extent that all claims of liability as against the NYSTA are dismissed and as a result, the Court, sua sponte, shall amend the caption to reflect the State of New York as the only properly named defendant in this matter; and it is further

ORDERED, that defendants' motion no. M-92305 is granted in part, to the extent that claimant's Labor law 200 and common law of negligence causes of action are dismissed, and it is further

ORDERED, that defendants' motion no. M-92305 is granted in part, to the extent that claimant's Labor Law 241 (6) cause of action as based on alleged violations of Industrial Code 12 NYCRR 23-1.8, 23-1.15, 23-1.16, 23-1.17, 23-1.21,23-1.21 (b), 23-1.24 or upon OSHA regulations is dismissed, and it is further

ORDERED, that defendants' motion no. M-92305 is denied in part, to the extent that claimant's Labor Law 241 (6) cause of action as based on alleged violations of Industrial Code 12 NYCRR 23-1.7 (b) (1) (i) and 23-1.7 (b) (1) (iii) (b ) and (c); and it is further

ORDERED, that claimant's motion no. M-92306 for partial summary judgment on his Labor Law 240 (1) cause of action is denied in its entirety.

September 17, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Defendants' notice of defendants' motion no. M-92305 for partial summary judgment and affirmation of Allison A. Snyder, Esq. dated May 22, 2018, with annexed Exhibits of A-I;

2. Opposing affirmation of Barry Semel-Weinstein, Esq. dated June 6, 2018, with annexed Exhibits A-E;

3. Reply affirmation of Allison A. Snyder, Esq. dated June 11, 2018, with annexed Exhibits J-M;

4. Claimant's notice of motion no. M-92306 for partial summary judgment and affirmation of Barry Semel-Weinstein, Esq. dated May 22, 2018, with annexed Exhibits A-K;

5. Opposing affirmation of Kevin B. Pollak, Esq. dated June 6, 2018, with annexed Exhibits A-G; and

6. Reply affirmation of Barry Semel-Weinstein, Esq. dated June 11, 2018, with annexed Exhibits A-B.


1. Burke EBT at p. 18, annexed as Exhibit F to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

2. Burke EBT at pp. 24-25, annexed as Exhibit F to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

3. Burke EBT at pp.41-42, annexed as Exhibit F to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

4. Burke EBT at pp. 44-46, 52, annexed as Exhibit F to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

5. Burke's continued EBT at pp. 31-38, annexed as Exhibit G to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

6. Burke's EBT at p. 73, annexed as Exhibit F to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

7. Affidavit of Paulo Nogueira, annexed as Exhibit K to the June 11, 2018 reply affirmation of Allison A. Snyder, Esq. in further support of defendants' motion no. M-92305.

8. Affidavit of Patrick Horton, annexed as Exhibit L to the June 11, 2018 reply affirmation of Allison A. Snyder, Esq. in further support of defendants' motion no. M-92305.

9. Affidavit of Paul Pappalardo, annexed as Exhibit A to the June 11, 2018 reply affirmation of Barry Semel-Weinstein, Esq. in further support of claimant's motion no. M-92306.

10. Claim no. 126794, annexed as Exhibit A.

11. Defendants' response to claimant's notice to admit, annexed as Exhibit E to the May 22, 2018 affirmation of Barry Semel-Weinstein in support of claimant's motion no. M-92306.

12. Footnote 1 to the June 11, 2018 reply affirmation of Barry Semel-Weinstein, Esq. in further support of claimant's motion no. M-92306.

13. Affidavit of Mark McClennan, annexed as corrected Exhibit I to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of defendants' motion no. M-92305.

14. Footnote 1 to the June 6, 2018 affirmation in opposition of Barry Semel-Weinstein, Esq. to defendants' motion no. M-92305.

15. Claimant's Verified Bill of Particulars, annexed as Exhibit C to the May 22, 2018 affirmation of Barry Semel-Weinstein, Esq. in support of Claimant's motion no. M-92306.

16. Stipulation of Partial Discontinuance, annexed as Exhibit D to the May 22, 2018 affirmation of Allison A. Snyder, Esq. in support of Defendants' motion no. M-92305.

17. Supplemental Expert Affidavit of Kathleen Hopkins, annexed as Exhibit E to the June 6, 2018 affirmation of Barry Semel-Weinstein, Esq. in opposition to defendants' motion no. M-92305.