Opinion
# 2017-015-223 Claim No. 124124 Motion No. M-89744 Motion No. M-89771
04-13-2017
MICHAEL ST. THOMAS, SR. and MARY ST. THOMAS v. THE STATE OF NEW YORK
Williams & Rudderow, PLLC By: Michelle Rudderow, Esquire Law Offices of Theresa J. Puleo By: Norah M. Murphy, Esquire
Synopsis
Claimant was injured during the course of a construction project at a State prison when he was struck on the head by a heavy block of ice which fell from the top of a scaffold on which he was working. The block of ice had been placed on top of a protective covering used to winterize the scaffold for masonry work. The Court granted claimants' motion for partial summary judgment on its Labor Law § 240 (1) cause of action and granted defendant's motion to dismiss the claimants' negligence and Labor Law §§ 200 and 241 (6) causes of action.
Case information
| UID: | 2017-015-223 |
| Claimant(s): | MICHAEL ST. THOMAS, SR. and MARY ST. THOMAS |
| Claimant short name: | ST. THOMAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124124 |
| Motion number(s): | M-89744, M-89771 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Williams & Rudderow, PLLC By: Michelle Rudderow, Esquire |
| Defendant's attorney: | Law Offices of Theresa J. Puleo By: Norah M. Murphy, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants move for partial summary judgment on the issue of liability pursuant to CPLR 3212 on their causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) and for dismissal of certain affirmative defenses. Defendant opposes the motion and moves for summary judgment dismissing the claim.
The State of New York entered into a contract with Fahs Construction Group, Inc. (Fahs), to construct a long term care addition (G Wing) and renovate C and E wings at the Walsh Regional Medical Unit located on the grounds of the Mohawk Correctional Facility in Rome, New York (claimants' Exhibit Q). Fahs, in turn, subcontracted the masonry work to Putrelo Building Enterprises, Inc. (Putrelo). Claimant, Michael St. Thomas, Sr. (claimant), was injured during the course of his employment with Putrelo on January 6, 2014 when, at approximately 7:30 a.m., a large block of ice fell from atop the scaffold on which he was working, striking him on the head and splitting his protective helmet in two. The block of ice that struck the claimant was estimated by various witnesses to weigh between 100 and 250 pounds.
Claimant Mary St. Thomas is the wife of Michael St. Thomas, Sr. and asserts a derivative claim for loss of services and consortium.
According to the claimant, he arrived at the job site at 7:00 a.m. and went up the scaffold outside the loading dock with the intention of preparing the area to lay brick (claimants' Exhibit I, at p. 53). When he and his two co-workers, John Volpe and Cassey Seaton, reached their work area they observed that the scaffold was wet and the "poly" weatherproofing that encased the scaffold, to keep the area warm and protect it from the elements, "was hanging down with snow and ice" (id. at p. 53). Claimant and his co-workers descended the scaffold and informed their foreman, Chris DeCarr, of the problem. Mr. DeCarr said he would have Fahs, the general contractor, clear the scaffold of snow and ice, and the claimant went inside to perform other work (id. at 55). After approximately 20-30 minutes, Mr. DeCarr informed claimant and his two co-workers that Chris Foster, Fahs' Foreman, had indicated "it was all cleared off and ready to go" (id. at 56). The three returned to the scaffold, which was approximately 15 feet high and 20 feet long, and claimant began using a torch to dry planks and steel lentils (id. at 59). Mr. Volpe gave a statement in which he stated that he was standing to the left of the claimant, stepped back to retrieve something and "heard a loud noise, like a CLUNK". He observed that the claimant appeared to be dazed, and helped him to the ground (claimants' Exhibit N). Mr. Volpe stated that the chunk of ice which struck the claimant fell a distance of approximately three feet before it was caught by the poly, causing the poly to sag between the two-by-fours as it had before the snow and ice was reportedly cleared (id. at p. 2).
Fahs was responsible for the placement of the poly encasement on the scaffold, which Mr. Foster testified enabled the masons to heat their work area (claimants' Exhibit J, p. 21). Foster testified that on the morning the claimant was injured he, Shawn Pratt and Merritt Rumble ascended the scaffold to clear off the snow and ice. He described the process as follows:
"[We] knocked it off the plastic, chased it out so it would go fall over the edge. And then the one really, really big chunk of frozen ice, the one that actually hit Mike, we lifted that up and pushed that up on top of the scaffolding. And then a guy went down to get our Genie lift, man lift, to get it off" (claimants' Exhibit J, p. 29).
The accident occurred before the manlift, which was parked outside the Sally Port, could be retrieved. According to Mr. Foster, the chunk of ice that struck the claimant weighed between 100 and 200 pounds and required three men to lift it and place it on top of the scaffold. When asked whether anyone from Fahs told Mr. DeCarr what they had done with the ice, Mr. Foster responded "No, I don't think me and Chris actually ever really talked, because they were already working while we were up there moving the ice anyway" (id. at 34, see also pp. 63-64). Mr. DeCarr, on the other hand, testified that after Fahs' employees cleared the snow and ice from the scaffold, Mr. Foster told him "we're all set", which he interpreted as indicating the snow and ice had been cleared and that it was safe to return to work (claimants' Exhibit K, pp. 92- 93).
Tie-backs are required by OSHA to stabilize scaffolds, according to both Mr. Foster and Mr. DeCarr (claimants' Exhibits J, p. 41; K, p. 31), and Mr. DeCarr testified that Putrelo employees utilized the tie-backs on the project to prevent the scaffold from moving because the winterization poly acted like a "sail" (claimants' Exhibit K, p. 31). Mr. Foster stated the tie-backs were in place when he cleared the snow and ice from the scaffold initially, but that he observed upon his return to the scaffold after the accident that the tie-backs had been cut by Putrelo's employees (claimants' Exhibit J, pp. 40-41). Mr. Foster stated in an accident report that it may have been the movement of the scaffold which caused the block of ice to fall on the claimant's head:
"Mike St. Thomas was on the out riggers of the top second section when the ice slid off the upper scaffold planks making it drop roughly 2 feet contacting Mike in the head. It is to my observation that the ice was in a safe spot for the time that I needed to get the lift but with the tie backs cut and the wind blowing the scaffold is what could have made the ice fall off the scaffold planks" (Exhibit H, Fahs' accident report).
Mr. DeCarr testified, however, that he remembers seeing the tie-backs in place on the morning of the accident and that although removal of the tie-backs was necessary to progress the work, new tie-backs would be affixed before removing the old ones (claimants' Exhibit K, pp. 58-59). Mr. DeCarr testified that Fahs took at least a month to install the poly weatherproofing because of their "incompetence" and that he complained daily about the manner in which it was installed (id. at 24-26, 87-88).
Claimants contend in support of their motion for summary judgment that the failure to provide one of the safety devices enumerated in Labor Law § 240 (1) was a proximate cause of the accident, that the defendant had sufficient supervisory control of the work to render it liable for Fahs' negligence and a violation of Labor Law § 200, and that violations of several Industrial Code regulations warrant the imposition of liability under Labor Law § 241 (6). Claimants also seek dismissal of defendant's affirmative defenses alleging that claimant's negligence was the sole proximate cause of the accident (claimants' Exhibit B, ¶ 5), claimant was comparatively negligent (id. at ¶ 6) and that claimant assumed the risk of injury (id. at ¶ 7).
Defendant opposes the motion and seeks dismissal of the claim, arguing that this is not the type of accident for which the protections afforded by Labor Law § 240 (1) were required, that the defendant did not supervise or control the means or methods of the work thereby requiring dismissal of the claimants' negligence and Labor Law § 200 causes of action, and that the Industrial Code sections on which claimants rely to support their Labor Law § 241 (6) cause of action are either inapplicable or insufficiently specific to support liability.
It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). At this stage, the evidence must be viewed " 'in the light most favorable to the non-moving party,' " (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40 [2015], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Once the movant has made the required showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
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]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). The special hazards to which the extraordinary protections of Labor Law § 240 (1) apply involve "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; see also Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). As succinctly stated by the Court of Appeals in Fabrizi v 1095 Ave. of the Ams., L.L.C. (22 NY3d 658, 662 [2014]), "[i]n order to prevail on summary judgment in a section 240 (1) 'falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute 'and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein' " (quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Thus, a claimant must show that at the time the object fell "it was either being hoisted or secured or required securing for the purposes of the undertaking" (Fabrizi, 22 NY3d at 662 [inner quotation marks and citations omitted]; see also Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757 [2008]; Outar v City of New York, 5 NY3d 731 [2005]; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070 [3d Dept 2009]; Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004 [2d Dept 2009]). Only in those circumstances in which the use of protective devices could be "expected" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263 [1st Dept 2007]) may the protections of the statute be invoked. Objects which may become dislodged during the course of the work, whether they be an integral part of the work (Rutkowski v New York Convention Ctr. Dev. Corp., 146 AD3d 686 [1st Dept 2017] [light bar fell during the course of dismantling an exhibition booth]; Sarata v Metropolitan Transp. Auth.,134 AD3d 1089 [2d Dept 2015] [cement debris being removed from steel beams fell through hole in safety net]; Ortlieb v Town of Malone, 307 AD2d 679 [3d Dept 2003] [850-pound pipe rolled into trench in which plaintiff was working]) or merely incidental thereto (Quattrocchi, 11 NY3d 757 [falling planks placed over doors as makeshift shelf to facilitate installation of air conditioning unit]; Outar, 5 NY3d 731 [unsecured dolly fell on subway track worker]), require securing. " 'What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken' " (Jordan v City of New York, 126 AD3d 619 [1st Dept 2015], quoting Buckley v Columbia Grammar & Preparatory, 44 AD3d at 269).
Claimants bear the burden of establishing the existence of an elevation-related risk, that adequate safety devices were not provided and that the absence or inadequacy of devices of the kind enumerated in the statute was a proximate cause of the injuries alleged (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]; Narducci, 96 NY2d at 268; Buckley, 44 AD3d at 268-269). Claimants have met this burden here. There is no dispute that Fahs' employees placed the heavy block of ice on the top rails of the scaffold prior to the claimant's accident and that it was unsecured. Whether the ice fell due to the movement of the scaffold or some other reason, it was foreseeable that the failure to secure the ice posed one of the special hazards Labor Law § 240 (1) was designed to prevent (cf. Sajta v Latham Four Partnership, 282 AD2d 969 [3d Dept 2001]). Moreover, it cannot be concluded that the two or three-foot distance the ice fell was de minimus given the weight of the ice and the amount of force it was capable of generating (see Runner v New York Stock Exch. Inc., 13 NY3d 599, 605 [2009]). Inasmuch as the ice that fell required securing for the purpose of the undertaking, claimant established a violation of § 240 (1) and that such violation was a proximate cause of his injuries. Accordingly, claimants' motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) is granted and defendant's motion seeking dismissal of this cause of action is denied.
Labor Law § 241 (6) imposes absolute liability upon an owner or general contractor for the negligence of a subcontractor even in the absence of supervision or control (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348-350 [1998]; Ross, 81 NY2d at 502; Allen v Cloutier Constr. Corp., 44 NY2d 290, 300 [1978]). Unlike Labor Law § 240 (1), however, Labor Law § 241 (6) is not self-executing. To impose liability under the statute it must be shown that the claimant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or specification (see Ross, supra; Rizzuto, supra).
In support of their Labor Law § 241 (6) cause of action the claimants here allege violations of Industrial Code §§ 23-1.4 (b) (13), 23-1.5 (a) and (b), 23-1.7 (a) and (d), 23-2.1 (b) and 23-5.1 (f). Industrial Code § 23-1.4 (b) (13) is not a specific command but a definition of the term "construction work"which provides no basis for a Labor Law § 241 (6) cause of action (cf. Saint v Syracuse Supply Co., 25 NY3d 117, 129 [2015]; Pittman v S.P. Lenox Realty, LLC, 91 AD3d 738 [2d Dept 2012]).
Industrial Code § 23-1.5, entitled General responsibility of employers, merely sets forth general safety standards and, thus, is not a proper predicate for liability under § 241 (6) (Pereira v Quogue Field Club of Quogue, Long Is., 71 AD3d 1104 [2d Dept 2010]; Wilson v Niagara Univ., 43 AD3d 1292 [4th Dept 2007]; Sihly v New York City Tr. Auth., 282 AD2d 337 [1st Dept 2001], lv dismissed 96 NY2d 897 [2001]).
Industrial Code § 23-1.7 (a), entitled Overhead hazards, requires that "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection" and specifies the type of protection required. While this section is sufficiently specific to support a Labor Law § 241 (6) cause of action, defendant established that the work site was not "normally exposed to falling material or objects" so as to require the protections afforded by this regulation (see Tafelski v Buffalo City Cemetery, Inc., 68 AD3d 1802 [4th Dept 2009], rearg denied 71 AD3d 1551 [4th Dept 2010], lv dismissed 14 NY3d 936 [2010]; Gampietro v Lehrer McGovern Bovis, 303 AD2d 996 [4th Dept 2003]). Rather, the block of ice that fell was a weather-related accumulation which posed a risk only after it was placed on the top rails of the scaffold by Fahs' employees. There being no evidence that the area was normally exposed to falling materials or objects, § 23-1.7 (a) is inapplicable to the facts of this case.
Industrial Code § 23-1.7 (d) relates to slipping hazards and is also inapplicable to the facts of this case (Croussett v Chen, 102 AD3d 448 [1st Dept 2013]; cf. Cooper v State of New York, 72 AD3d 633 [2d Dept 2010]).
Industrial Code § 23-2.1 (b) states the following:
"Disposal of debris. Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area."
There is a split in the departments regarding whether this regulation is sufficiently specific to support a § 241 (6) cause of action. The First and Second Departments have determined that it is not sufficiently specific (see Venezia v State of New York, 57 AD3d 522 [2d Dept 2008]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2d Dept 2003], appeal dismissed 2 AD3d 619 [2d Dept 2003]; Quinlan v City of New York, 293 AD2d 262 [1st Dept 2002]; Canning v Barneys N.Y., 289 AD2d 32 [1st Dept 2001]; Lynch v Abax, Inc., 268 AD2d 366 [1st Dept 2000]; Fowler v CCS Queens Corp., 279 AD2d 505 [2d Dept 2001]; Mendoza v Marche Libre Assoc., 256 AD2d 133 [1st Dept 1998]; see also Gulino v NYS Thruway Auth., 13 Misc 3d 1238 [A] [Ct Cl 2006) and the Fourth Department has determined that it is (DiPalma v State of New York, 90 AD3d 1659 [4th Dept 2011]; Coleman v ISG Lackawanna Servs., LLC, 74 AD3d 1825 [4th Dept 2010]). Inasmuch as the claim arose in the Fourth Department, this Court is bound to follow its precedent (see Court of Claims Act § 24; Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]). Nevertheless, the ice which fell and struck the claimant was not "debris" within the meaning of the regulation and the regulation is therefore inapplicable to the facts of this case.
Lastly, 12 NYCRR 23-5.1 (f) requires that "[e]very scaffold shall be maintained in good repair and every defect, unsafe condition or noncompliance with this Part (rule) shall be immediately corrected before further use of such scaffold." This section sets forth a general rather than a specific safety standard and therefore fails to support a § 241 (6) cause of action (Holly v County of Chautauqua, 63 AD3d 1558 [4th Dept 2009], revd on other grounds 13 NY3d 931 [2010]; Sopha v Combustion Eng'g, 261 AD2d 911, 912 [4th Dept 1999]).
While claimants' alleged a violation of 12 NYCRR §14-1.10 in their bill of particulars, they do not now rely upon this regulation to support their Labor Law § 241 (6) cause of action. Indeed, this regulation applies to the construction, installation, inspection and maintenance of high pressure boilers and unfired pressure vessels.
Accordingly, defendant demonstrated its prima facie entitlement to summary judgment dismissing the claimants' Labor Law § 241 (6) cause of action.
Claimants also seek summary judgment on their negligence and Labor Law § 200 causes of action. The defendant seeks to dismiss these same causes of action.
Labor Law § 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (Rizzuto, 91 NY2d at 353; Allen v Cloutier Constr. Corp., supra). "[A]n implicit precondition to this duty is that the party to be charged with that obligation 'have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' " (Rizzuto, 91 NY2d at 352, quoting Russin v Picciano & Son, 54 NY2d 311, 317 [1981]). 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 Elec. & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]; Gillis v Brown, 133 AD3d 1374, 1376 [4th Dept 2015]). However, where "a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, [they stem] from a dangerous condition on the premises, [an owner] may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition"(St. John v Westwood-Squibb Pharms., Inc., 138 AD3d 1501, 1503 [4th Dept 2016]; see also Nicholas v Wal-Mart Stores, Inc., 137 AD3d 1733 [4th Dept 2016]). Here, claimant's accident was the result of the manner in which the work was performed rather than as a result of a dangerous condition on the premises (see Rizzuto, 91 NY2d at 352; Comes v New York State Elec. & Gas Corp., supra; Lombardi v Stout, supra) and neither the retention of general supervisory control nor the authority to enforce safety standards is sufficient to establish the control necessary to impose liability (Peck v Szwarcberg, 122 AD3d 1216, 1220 [3d Dept 2014]; Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927 [3d Dept 2004]). Rather, it must be demonstrated that the defendant possessed the requisite supervisory control over the injury-producing activity (Rizzuto, 91 NY2d at 352-353; McLean v Tishman Constr. Corp., 144 AD3d 534 [1st Dept 2016]; Fazekas v Time Warner Cable, Inc., 132 AD3d 1401 [4th Dept 2015]; Turner v Sano-Rubin Constr. Co., 6 AD3d 910, 912 [3d Dept 2004]; Sweeney v Yonkers Contr. Co., 269 AD2d 590 [2d Dept 2000]). Such circumstances were not demonstrated here.
In support of their motion, claimants established no more than the fact that the defendant retained the right to inspect the work for compliance with contract specifications and had the right to stop the work if it observed a dangerous condition. "General supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200" (Messina III v City of New York, 147 AD3d 748 [2d Dept 2017]). Nor do the requirements of either the scaffold use agreement between Putrelo and Fahs (claimants' Exhibit 1 attached to the affidavit of Michelle Rudderow sworn to Jan. 24, 2017) or the security provisions of Fahs' contract with the State (claimants' Exhibit S, § 015123-1) authorize or require the State to supervise or control the means or methods of the work. To the contrary, the defendant's contract with Fahs expressly required that Fahs "shall control and coordinate the Work of its subcontractors" (claimants' Exhibit R, contract, § 6.4; see also § 17.1). Moreover, defendant established in support of its motion that it did not supervise or direct claimant's work or the manner in which the ice was removed, it did not provide equipment or materials for the work, and it was only present on the site for the purpose of quality control (see defendant's letter submission dated March 29, 2017 and the attachments thereto; claimants' Exhibit M, p. 32). Accordingly, claimants' motion for partial summary judgment on their common law negligence and Labor Law § 200 causes of action must be denied and that branch of defendant's motion seeking dismissal of these causes of action granted. Claimants seek dismissal of the defendant's first three affirmative defenses alleging that claimant's conduct was the sole proximate cause of the accident (first affirmative defense), claimant's injuries were caused in whole or part by his own culpable conduct (second affirmative defense) and that claimant assumed the risk of injury (third affirmative defense). Defendant does not oppose dismissal of these defenses. Comparative negligence is not a defense to a claim under Labor Law § 240 (1) and there is no evidence that claimant's conduct was the sole proximate cause of his injuries or that he assumed the risk of injury (see generally Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Cacanoski v 35 Cedar Place Assoc., LLC, 147 AD3d 810, 812 [2d Dept 2017]; cf. Harrington v State of New York, 277 AD2d 856 [3d Dept 2000]). Accordingly, these defenses must be dismissed.
Based on the foregoing, that branch of claimants' motion which seeks partial summary judgment on the issue of liability under Labor Law § 240 (1) and the dismissal of defendant's first three affirmative defenses is granted and the motion is in all other respects denied. That branch of defendant's motion which seeks dismissal of claimants' causes of action alleging common law negligence and violations of Labor Law § 200 and § 241 (6) is granted and the motion is otherwise denied.
The trial currently scheduled for June 12, 2017 will proceed on the issue of damages. The Court has scheduled a conference for May 2, 2017 at 9:30 a.m. to discuss the trial of this matter.
April 13, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion (M-89744) dated January 6, 2017;
Affidavit of Michelle Rudderow sworn to January 6, 201[7] with exhibits A - X;
Memorandum of law of Michelle Rudderow dated January 6, 2017;
Notice of motion (M-89771) dated January 10, 2017;
Affidavit of Norah M. Murphy sworn to January 10, 2017 with exhibit;
Affidavit in opposition of Michelle Rudderow sworn to January 24, 2017 with exhibits;
Affidavit of Norah M. Murphy sworn to January 27, 2017;
Reply affidavit of Michelle Rudderow sworn to February 17, 2017;
Letter dated March 29, 2017 from Norah M. Murphy with attachments.