Opinion
October 24, 1967
Appeal from a judgment of the Court of Claims dismissing a claim against the State for wrongful death and conscious pain and suffering. Decedent met his death on June 20, 1962, while working as a carpenter, employed by the State's contractor, then engaged in erecting piers or vertical concrete columns for the approach to a bridge across the Flushing River, in connection with the construction of the Whitestone Expressway. A platform or scaffold had been erected by employees of the contractor on the tops of the pier columns, 25 feet above the ground. It is undisputed that there was an opening in the platform about four feet square and that this opening was not protected by guardrails. While working on the platform, decedent lost his balance and fell through the opening to the ground below. The claim alleged violations of certain sections of the Labor Law as they existed at the time of the accident (former §§ 200, 240, 241), and of rules adopted thereunder. As claimant properly concedes, there can be on the facts of this case no liability on the part of the State under either section 200 or 240 and the Court of Claims correctly held that no basis for liability of the State under section 241 has been demonstrated; and, of course, no regulation promulgated thereunder could create or enlarge any liability on the part of the State (see Wright v. Belt Associates, 14 N.Y.2d 129; Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 28, 29; Grant v. Rochester Gas Elec. Corp., 20 A.D.2d 48; Komar v. Dun Bradstreet Co., 284 App. Div. 538). Judgment affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.