Opinion
# 2011-015-279 Claim No. 117794 Motion # 2011-015-279 Claim No. M-80051 # 2011-015-279 Claim No. M-80081
12-06-2011
RODRIGUES v. THE STATE OF NEW YORK
Synopsis
Defendant's motion for partial summary judgment was granted to the limited extent of dismissing his Labor Law § § 200 and 240 (1) causes of action. Motion was granted to the extent it sought to strike the note of issue. Case information
UID: 2011-015-279 Claimant(s): ENIO ANTONIO RODRIGUES Claimant short name: RODRIGUES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117794 Motion number(s): M-80051, M-80081 Cross-motion number(s): Judge: FRANCIS T. COLLINS Sacks and Sacks, LLP Claimant's attorney: By: David H. Mayer, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: Malapero & Prisco, LLP By: Shannon L. Saks, Esquire Third-party defendant's attorney: Signature date: December 6, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212 (Motion No. M-80081) and, alternatively, to strike the Note of Issue and Certificate of Readiness on the ground that discovery is incomplete (Motion No. M-80051).
Claimant was allegedly injured on November 10, 2009 when he fell from a flatbed trailer during the course of his employment with Erie Painting Corp. ("Erie").According to the allegations in the claim, the accident occurred "on the northbound shoulder of the New York State Thruway and a few feet before the overpass for Exit 21 of the Thruway".The instant action named both the State of New York and the Department of Transportation ("DOT")as defendants and alleges causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6).
Although the claim alleges claimant was employed by Geronimo Painting, Inc. when the accident occurred (see defendant's Exhibit A, claim, par. 2), he testified at an examination before trial that he was employed by Erie (defendant's Exhibit H, p. 28).
Claimant testified at his examination before trial that the accident occurred near Exit 23A of the New York State Thruway (defendant's Exhibit H, p. 38).
Inasmuch as the DOT is not an autonomous public corporation with an existence separate and independent of the State, by Order dated March 4, 2010 the caption was amended to reflect the State of New York as the only properly named defendant.
Claimant allegedly learned during the course of discovery that it was the New York State Thruway Authority ("Thruway Authority") and not the DOT that contracted with Erie for performance of the work. As a result, he moved to file and serve a late claim against the Thruway Authority alleging causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). By Decision and Order dated July 19, 2011, the motion was granted only with respect to the proposed Labor Law § 241 (6) cause of action and otherwise denied. The claim against the Thruway Authority was filed on October 6, 2011 and assigned claim number 120442. The instant motions were made while the late claim motion was pending.
As set forth in this Court's Decision and Order resolving the late claim motion, Erie contracted with the Thruway Authority for painting work on six bridges along the New York State Thruway (defendant's Exhibit G, p. 6). According to claimant's examination before trial ("EBT") testimony, he was in the process of removing large tarps from a flatbed trailer when both feet slipped on grease on the floor of the trailer, causing him to fall from the trailer (defendant's Exhibit H, pp. 69-70). The trailer measured approximately 25 feet by 12 feet and was approximately five or six feet high (defendant's Exhibit H, pp. 54, 60). Claimant testified that the tarps were always removed from the trailer manually (defendant's Exhibit H, pp. 63-64) and that, on the day of the accident, he and a co-worker had removed one or two tarps before the accident occurred (defendant's Exhibit H, p. 27). Claimant testified that the trailer was owned by Erie and moved from site to site as needed (defendant's Exhibit H, pp. 54-55). According to claimant's EBT testimony, safety harnesses were unnecessary to the work he was performing at the time of the accident and no one other than his employer provided him instruction regarding the performance of his work (defendant's Exhibit H, pp. 43-45, 47-48, 57-58).
To the extent defendant's motion is premised on the contention that neither the State of New York nor the DOT (which is not an entity separate and distinct from the State) owned the premises where the accident occurred, it failed to establish its prima facie entitlement to summary judgment (Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendant supports this branch of its motion with nothing more than an attorney's affirmation and a copy of its answer in which it denies knowledge and information sufficient to form a belief as to the allegations in the claim. While defense counsel also submitted an EBT transcript of Robert K. Remmers (Exhibit I), a DOT employee, this testimony fails to establish that the premises where this accident occurred was owned by the Thruway Authority and not the State of New York. Mr. Remmers testified in this regard that "we're not responsible for I-87 South of Albany which is maintained by the Thruway Authority" (defendant's Exhibit I, p. 9). He did not testify that the Thruway Authority owned the premises where the accident occurred. Significantly, Public Authorities Law § 354 (4) empowers the Thruway Authority "[t]o acquire and hold in the name of the state by purchase or appropriation real property or rights or easements therein . . ." (emphasis added). Consequently, summary judgment dismissing the claim against the State of New York on the ground that it is not the owner of the property where this accident occurred is denied upon the proof contained in the record.
The defendant also argues that the negligence and Labor Law §§ 200, 240 (1) and 241 (6) causes of action are meritless. Labor Law § 200 is a codification of the common law duty of a landowner to provide workers with a reasonably safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). Where the alleged defect or dangerous condition arises from a contractor's methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law § 200 attaches (Comes v New York State Electric & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]). Where, on the other hand, a claimant is allegedly injured as a result of a dangerous or defective condition of the premises "there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time" Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 51 [2011]). Here, claimant testified that he received no instruction from anyone other than his employer with regard to the manner in which the work was to be performed (defendant's Exhibit H, pp. 43-45, 47-48, 57-58). There is likewise no evidence that the State caused the slippery condition the claimant encountered while working on the employer-owned trailer or was otherwise aware of its existence. Accordingly, defendant established its entitlement to summary judgment dismissing claimant's common law negligence and Labor Law § 200 causes of action (Matter of Allen v State of New York, 2002 WL 31940720 [2002], affd 4 AD3d 835 [2004]).
Labor Law § 240 (1) imposes a nondelegable duty on owners and contractors to "furnish or erect, or cause to be furnished or erected . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]." (Labor Law § 240[1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). However, not all perils connected "in some tangential way with the effects of gravity" invoke the protections afforded by the statute (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). "Rather, the 'special hazards' referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Id.; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). As stated by the Court of Appeals in Rocovich v Consolidated Edison Co. (78 NY2d 509, 514 [1991]): "The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." On several occasions the Court of Appeals has held that the risk of falling from the bed of a truck is not the kind of elevation-related risk that Labor Law § 240 (1) was intended to address. In Toefer v Long Is. R.R. (4 NY3d 399 [2005]) a workman was injured while unloading steel beams from a truck, four feet above ground level, when a wood lever used to pry the beams off the truck flew back and struck the workman with such force that he was caused to fall to the ground. The Court of Appeals held that a four-foot fall from the bed of a truck was not attributable to the sort of elevation-related risk that Labor Law § 240 (1) was meant to address. In so holding, the Court rejected plaintiff's argument that the failure to provide a hoist (one of the devices enumerated in the statute) constituted a violation of the statute, stating: "Labor Law § 240 (1) is arguably implicated in this case only because [the workman] fell from the truck's trailer to the ground. The purpose of a hoist here would not have been to prevent [the workman] from falling; it would have been to prevent the beams themselves from doing damage. But [the workman] was not injured by a beam, or by any falling object . . ." (Id. at 408).
Likewise, in Marvin v Korean Air, decided together with Toefer, the plaintiff was injured when his foot became tangled in the safety harness he was wearing, causing him to fall four feet from the back of a trailer. The Court held:
"A four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240 (1)'s coverage. Safety devices of the kind listed in the statute are normally associated with more dangerous activity than a worker's getting down from the back of a truck. Obviously, the distance between the work platform and the ground is relevant; no one would expect a worker to come down without a ladder or other safety device from a work platform that was 10 feet high. But the lesser distance Marvin had to travel, considering the nature of the platform he was departing from, was not enough to make Labor Law § 240 (1) applicable" (Id. at 408-409; see also Bond v York Hunter Constr., 95 NY2d 883 [2000] [risk of alighting from a construction vehicle was not an elevation-related risk which calls for any of the protective devices listed in Labor Law § 240 [1]).
In Intelisano v Sam Greco Constr., Inc. (68 AD3d 1321 [2009]) the plaintiff fell while attempting to ascend a 10-foot stack of bundled insulation on a flatbed trailer four feet above the ground. The Appellate Division, Third Department, recognized that "[w]hile falling from the bed of a truck is not [the] kind of elevation-related hazard contemplated by the statute, Labor Law § 240 (1) can be applied where some risk-enhancing circumstance implicates the protections of the statute" (Id. at 1322-1323). The Court in that case found such circumstances existed since the plaintiff was required to ascend the 10-foot bundle of insulation without the use of a ladder or scaffold (see also Ford v HRH Constr. Corp., 41 AD3d 639 [2007]). No such risk-enhancing circumstances exist in the case at bar. Rather, movant's own deposition testimony established that his alleged injuries were caused by a slip and fall from a distance of only five or six feet. He was otherwise able to safely ascend the trailer without the use of a ladder and had done so shortly before the accident (see Berg v Albany Ladder Co., Inc., 40 AD3d 1282 [2007], affd 10 NY3d 902 [2008]; Amantia v Barden & Robeson Corp., 38 AD3d 1167 [2007]). As a result, the accident was not caused by an elevation-related hazard for which one of the safety devices enumerated in Labor Law § 240 (1) was required. Dismissal of claimant's Labor Law 240 (1) cause of action is therefore required.
Unlike Labor Law § 240 (1), Labor Law § 241(6) is not self-executing. In order to impose liability under the statute it must be shown that the movant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or specification (see Ross v Curtis-Palmer Hydro-Electric Co., supra; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). In support of the Labor Law § 241 (6) cause of action the claimant alleges, inter alia, a violation of Industrial Code § 23-1.7 (d) (12 NYCRR), which provides as follows:
"Slipping hazards. Employers 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 has been held sufficiently specific to support a Labor Law § 241 (6) claim and appears to be applicable to the facts alleged here (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 350-351; Kobel v Niagara Mohawk Power Corp., 83 AD3d 1435 [2011]). Thus, defendant failed to establish its entitlement to summary judgment dismissing claimant's Labor Law § 241 (6) cause of action.
Turning to defendant's motion to strike the note of issue, a party may move to strike the note of issue upon a showing that the case is not ready for trial (22 NYCRR § 206.12 [d]). Defendant established that certain items of discovery remain outstanding. In particular, defense counsel avers that it requested an examination of the claimant by a vocational rehabilitation expert, which has not yet been performed, and that an examination before trial relating to claimant's damages remains outstanding. Notably, claimant has undergone surgeries on his back and shoulder, the most recent on March 28, 2011, and the defendant has requested an additional deposition and medical examinations with regard to this portion of claimant's treatment. Lastly, the claim against the Thruway Authority was recently filed on October 6, 2011 and the parties agree that depositions of Thruway Authority personnel will be necessary. Inasmuch as discovery in this case remains outstanding and discovery in the companion claim against the Thruway Authority (claim number 120442) has not yet begun, the Court will grant defendant's motion to strike the note of issue.
Based on the foregoing, defendant's motion for summary judgment (Motion Number M-80081) is granted to the limited extent of dismissing claimant's causes of action alleging negligence and violations of Labor Law §§ 200 and 240 (1) and is otherwise denied.
Defendant's motion to strike the note of issue and certificate of readiness (Motion Number M-80051) is granted and Clerk of the Court of Claims is directed to strike the Note of Issue and Certificate of Readiness previously filed in this claim. The parties shall have 90 days from the date of filing of this Decision and Order to complete discovery and file and serve a Note of Issue and Certificate of Readiness for trial.
December 6, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-80051
1. Notice of motion dated June 22, 2011;
2. Affirmation of Shannon L. Saks dated June 22, 2011 with exhibits;
3. Affirmation of David H. Mayer dated July 11, 2011 with exhibit.
Motion No. M-80081
1. Notice of motion dated July 8, 2011;
2. Affirmation of Shannon L. Saks dated July 8, 2011 with exhibits;
3. Affirmation of David H. Mayer, Esquire dated August 30, 2011 with exhibit;
4. Reply affirmation of Shannon L. Saks dated September 6, 2011 with exhibit.