Opinion
# 2015-049-041 Claim No. 122335 Motion No. M-86375
07-14-2015
EDWARD HYNSON v. THE STATE OF NEW YORK
Bergman, Bergman, Goldberg, Fields & Lamansoff, LLP. By: Allen Goldberg, Esq. Eric T. Schneiderman, New York State Attorney General By: Ellen S. Mendelson, Assistant Attorney General
Synopsis
Case information
| UID: | 2015-049-041 |
| Claimant(s): | EDWARD HYNSON |
| Claimant short name: | HYNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122335 |
| Motion number(s): | M-86375 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Bergman, Bergman, Goldberg, Fields & Lamansoff, LLP. By: Allen Goldberg, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Ellen S. Mendelson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 14, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this case, now before the Court on a motion for summary judgment, claimant Edward Hynson seeks damages under Labor Law §§ 200, 240 and 241 for injuries allegedly suffered by Hynson on September 5, 2007 while he installed telecommunications cables as an employee of Starcom Communications Services, Inc. at the State University of New York's Neil D. Levin Graduate Institute of International Relations and Commerce (the "Levin Institute"). According to the claim, Hynson fell from a baker scaffold and sustained injuries, including a separated right shoulder and a fractured left wrist (Claim ¶ 3).
Claimant initiated this action by seeking leave to file a late claim in January of 2009. The motion was denied by Decision and Order of Judge Melvin Schweitzer dated May 19, 2009, on the ground that "the site where the accident occurred was not under the jurisdiction or responsibility of the State of New York," but rather the State University Construction Fund ("SUCF" or the "Fund"), a public benefit corporation over which (he found) the Court of Claims lacks jurisdiction (Aff. in Supp. Ex. B at 2). Additionally, the Court held that claimant "has an alternate remedy in Supreme Court" against SUCF (id. at 3).
Claimant brought suit in Supreme Court against SUCF and other defendants, and in August 2011 moved for leave to renew and reargue the Court's decision on his late claim motion. The Court granted the motion, and gave claimant leave to file a late claim. It explained in its opinion that during the parallel suit Hynson had "discovered that the contract his subcontractor employer had was, in fact, with the State of New York, not the Fund" (id. Ex. C at 2). Claimant then filed and served the present claim (id. Ex. D), to which defendant served a verified answer on March 11, 2013 (id. Ex. E).
Claimant now moves for summary judgment as to liability on his section 240(1) cause of action, arguing that: (1) defendant has admitted ownership of the property where the accident took place (Aff. in Supp. ¶ 13); (2) the safety device provided to claimant (the baker scaffold) "was unsafe and failed to provide proper protection" (id. ¶ 29); and (3) the State of New York, as the owner of the accident site, is absolutely liable for damages arising from said injuries (id. ¶ 23).
In support of his motion, claimant presents his own testimony given in two depositions - one in this action, and one in the Supreme Court suit (Aff. in Supp. Exs. F, I). In those depositions, claimant averred that the incident occurred as follows: At eight o'clock in the morning of September 5, 2007, he arrived at the premises at 119 East 54th Street, New York, New York for his first day of work installing telecommunications cable. Starcom Communications ("Starcom"), his employer, had been hired to install such cable as part of the renovation of the Levin Institute (Aff. in Supp. ¶¶ 3-4, Ex. F at 21, Ex. I at 8, 13, 21).
Claimant entered the conference room where the accident would occur around nine o'clock a.m., along with his foreman Dave Ramaspore (id. Ex. F at 18, 22-23, Ex. I at 22). The conference room was under reconstruction. They brought with them two six-foot, A-frame ladders provided for their use by Starcom, but discovered that the floor was covered with construction materials, including sheetrock and cable, such that opening a ladder at the spot they needed to work would have been impossible (id. Ex. I at 36-37).
Hynson testified that there is an understanding or agreement that one laborer is not permitted to touch any materials that belonged to other laborers, so he could not move these obstacles (Aff. in Supp. Ex. F at 25-26, 29-32, Ex. I at 30, 36-37, 80). At the same time, he saw a baker scaffold positioned in the center of the room, right under the spot he needed to reach with his ladder to install the cable.
As described by claimant, a "baker scaffold" is "a scaffold that's about six-feet long and maybe three-feet wide [with] boards across it" (Aff. in Supp. Ex. I at 34).
Claimant admitted that he did not know the origin, ownership or condition of the scaffold, and recognized that it lacked a safety rail around the top (Aff in Supp. Ex. F at 32, Ex. I at 31-34). He checked that the scaffold's wheels were locked in position, and then ascended the scaffold via the rungs on its side (Aff. in Supp. Ex. I at 31-32, 40-41). He had not been provided with a harness or alternative safety device for this or any other purpose, nor did his foreman instruct him not to proceed without such a device (Aff. in Opp. Ex. F at 40, Ex. I at 39-41). Indeed, he did not discuss his decision to ascend the scaffold with Ramaspore or anyone else (Aff. in Supp. Ex. I at 39).
Once claimant was on top of the scaffold, the foreman sent the cable being installed up to a conduit in the ceiling, and claimant pulled the cable through, coiled it up, and placed it in the ceiling, as was his job (Aff. in Supp. Ex. F at 35-37, 40-42, Ex. I at 31, 36, 38, 41, 81). At some point, however, claimant noticed an electrician also working in the conference room, and struggling with a wire stuck in the junction box above. Without being asked, and recognizing that it was atypical for telecommunications workers to coordinate work with electricians, claimant walked across the scaffold with the goal of freeing the electrician's wire for him, as the electrician himself was on the ground (Aff. in Supp. Ex. F at 26-27, 42-43, 50, Ex. I at 41-43, 50). As claimant was walking from the middle of the scaffold toward the end to assist the electrician, he avers that one of three or four wooden planks lying across the top of the scaffold "flipped," causing him to fall forward to the cement floor five and a half feet below, suffering injury (Aff. in Opp. Ex. A at 43-46; Aff. in Supp. Ex F at 43-49). In the affirmation supporting the present motion, counsel argues that defendant New York State failed to ensure that the scaffold "was properly secured and braced" (Aff. in Supp. ¶ 31).
Regarding the role of the State in this matter, claimant submits defendant's response to a notice to admit, which acknowledged that the premises under renovation at 119 East 54th Street were owned by SUNY on the date of claimant's accident, September 5, 2007 (Aff. in Supp. Ex. G ¶ 1-2, Ex. H ¶ 1-2). Further, claimant's counsel avers, in his affirmation: "[T]he work performed by EDWARD HYNSON at the time of his accident was not performed under a contract awarded by [SUCF]. Rather, the work performed by Mr. Hynson was work that was contracted for directly by the State of New York" (Aff. in Supp. ¶ 10). He provides no evidence for this assertion, except to cite Judge's Schweitzer's Decision and Order granting his motion to renew.
While the State was served with various other notices to admit regarding its role in the property (i.e., whether it operated, managed, controlled or maintained the premises), it objected to those inquiries on the ground that they called for legal conclusions ( see Aff. in Supp. Ex. G, H).
Defendant responds to claimant's submission with the affirmation of an assistant attorney general, and the affidavit of Noreen Van Doren, associate attorney for the Office of General Services ("OGS"). In its opposition papers the State also relies upon certain statements in claimant's deposition testimony.
The State makes essentially two arguments: First, it asserts that "there was no State contract in effect at the time of the alleged incident," and it "had no supervision or control over the construction site as the Levin Institute is under the auspices of the [SUCF]" (Aff. in Opp. ¶ 14). In support of this argument, the State points to the Van Doreen affidavit, which states as follows:
"OGS has been unable to find any record that [the contract with IBM] that has often been referenced by claimant . . . was being used at the Levin Institute . . . . [It has] no report from IBM that it performed work at that location in September 2007 . . . . In addition, the installation of telephone wires/cables was not a service authorized to be provided by IBM under [the contract in question]" (Aff. in Opp. Ex. D ¶ 3-4).
And additionally:
"Upon information and belief the [SUCF] was the entity involved in overseeing the construction project under which claimant was working at the time of his alleged injury. The Office of General Services would not contract for construction work to be performed at the Levin Institute as the Levin Institute is under the jurisdiction of the State University of New York and it is the State University Construction Fund, not OGS, which has the legal authority to perform construction services on State University of New York buildings" (Aff. in Opp. Ex. D ¶ 5).
Defendant also provides various contractual documents between SUCF and Glenman Industrial and Commercial Contractor Corp. ("Glenman"), ostensibly to support this argument. But the "General Requirements, Description of Work" document appended to Glenman's contract with the SUCF says that audiovisual, telecommunications, and security equipment installations were not included in Glenman's contract and that "other contracts [may be] let for work to be done in adjacent areas" (Aff. in Opp. Ex. B Div. 1, §§ A.2, C.30). Additionally, neither Glenman's records of contract change orders from SUCF nor its monthly applications for payment from the SUCF include any reference to the installation of telecommunications cable (Aff. in Opp. Ex. B, Sub-Ex. C).
Defendant's other argument is that there is a question of fact as to whether claimant was the "sole proximate cause" of the incident. In support of this contention, defendant asserts:
•Claimant made a unilateral decision to use the scaffold rather than a ladder, without making inquiry as to the scaffold's owner, or discussing the matter with his supervisor (Aff. in Opp. ¶ 7).
•Claimant possessed no information as to whether the scaffold was fully erected, but decided it was because the wheels were fully locked (Id. ¶¶ 9, 10).
•Claimant never looked for safety devices "such as a lanyard or harness" before ascending the scaffold, nor did he take any with him (id. ¶ 4).
•Claimant knew there was no railing on the scaffold at the time he got on it (id. ¶ 7).
•Claimant had other options available, such as clearing the ground so he could have used a ladder (id. ¶ 8).
Claimant has submitted an affirmation of counsel in reply, making various legal arguments addressed below.
Discussion
To prevail on his motion for summary judgment, claimant must make a prima facie showing by tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If he succeeds in making this showing, the burden shifts to defendant to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact, which must be resolved at a trial (see Zuckerman, 49 NY2d at 562). If claimant fails to meet his burden, summary judgment must be denied regardless of the sufficiency of defendant's response (see Winegrad, 64 NY2d at 853).
For purposes of a summary judgment motion, an affirmation by an attorney without personal knowledge of the facts has no probative value; it may, however, be used as a vehicle for submission of admissible documentary evidence (see Zuckerman, 49 NY2d at 563).
The only cause of action at issue on this motion is that brought under Labor Law § 240(1). That statute provides in pertinent part:
"All contractors and owners and their agents, . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 a person so employed."
Section 240(1) "imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker," which injury results from "the type of elevation-related hazard to which the statute applies" (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011] [citations and internal quotation marks omitted]).
Hynson's submission presents admissible evidence (his testimony) showing a scaffold available on a worksite owned by defendant collapsed, and he was injured by an elevation-related hazard as a result. This would suffice to state a prima facie case, provided that claimant has produced sufficient evidence regarding the connection between the State of New York and the incident (see Thompson v St. Charles Condomuniums, 303 AD2d 152, 154 [1st Dept 2003] ["when a safety device" - a scaffold - "has been furnished and it collapses, a prima facie case of liability under Labor Law § 240(1) is established"]). In regard to the State's role, however, the motion-in-chief falls short of demonstrating the absence of an issue of material fact.
Claimant demonstrates that the State of New York owned the location at issue, via defendant's response to the notice to admit. Mere ownership is not sufficient, though, to subject a defendant to liability under section 240(1). In Morton v State of New York (15 NY3d 50 [2010]), the Court of Appeals held that before liability will be imposed on a non-contracting owner under the Labor Law, there must be an adequate "nexus" between that owner and the injured worker, "whether by a lease agreement or grant of an easement, or other property interest" (id. at 56; see also Custer v Jordan, 107 AD3d 1555 [4th Dept 2013] ["even under a liberal construction of section 240(1), ownership of the premises where the accident occurred, standing alone, is insufficient to impose liability under section 240(1) on an out-of-possession property owner who does not contract for the injury-producing work [as] . . . a prerequisite to the imposition of liability upon such an owner is 'some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest]).
Claimant cites Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333 [2008]) and other earlier decisions for the proposition that an owner is liable for work that takes place on its property regardless of whether it is has supervision and control over the contractor's work (see Reply Aff. ¶ 15). And there is indeed language in Sanatass to that effect. The Court discussed Sanatass extensively in Morton, however, and the Court of Appeals explained that the nexus requirement had been met in Sanatass by the existence of a lease agreement between the owner and tenant where the repairs had taken place (Morton, NY3d at 56-60). Here, the only evidence of SUNY's role in claimant's work is the State's bare admission of ownership. Finally, although Morton concerned an action brought under Labor Law § 241(6), it relied for its analysis on section 240(1) precedents, and the "nexus" standard it established has been applied to section 240(1) actions (see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]; Mutadir v 80-90 Maiden Lane Del LLC, 110 AD3d 641, 642 [1st Dept 2013]; Custer, 107 AD3d at 1557]).
Claimant has presented no testimonial or documentary evidence to demonstrate the State's role in the project, or its nexus with Hynson, beyond its ownership. Instead, he bases his assertion that the State directly contracted for claimant's work on Judge Schweitzer's opinion on claimant's motion for renewal on the late claim application, and in particular the statement therein that Hynson's attorney "eventually discovered [during the Supreme Court litigation] that the contract his employer had was, in fact, with the State of New York." Claimant does not present such contract, or identify the evidence submitted in his motion to renew on which this holding was based.
In the absence of specific proof to support his contention beyond the earlier opinion itself, claimant relies upon the doctrine of "law of the case" (see Reply Aff. ¶¶ 17-23). That doctrine "is a rule of comity and convenience which states that ordinarily a court of coordinate jurisdiction should not disregard an earlier decision on the same question in the same case" (Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469 [1st Dept 1987]). It applies only "to legal determinations that were necessarily resolved on the merits in the prior decision" (Grullon v City of New York, 297 AD2d 261, 265 [1st Dept 2002] [citations omitted]), and does not require a Court to apply a ruling made under one legal standard, to a motion decided under a different standard (see 191 Chrystie LLC v Ledoux, 82 AD3d 681 [1st Dept 2011] [ruling on motion to dismiss not law of the case in subsequent summary judgment motion; prior decision "was based on the facts and law presented by the parties in that procedural posture, and no more"]; Meekins v Town of Riverhead, 20 AD3d 399, 400 [2d Dept 2005] [prior denial of summary judgment motion by defendant not law of the case for plaintiff's motion for same relief, since prior decision determined only that defendant did not meet its burden]).
This doctrine does not apply here. The cited language from the Court's earlier decision was made in the context of a late claim application, or more precisely, a motion seeking renewal from the denial of such motion. On a motion to file a late claim under Court of Claims Act § 10(6), the Court must balance a series of delineated factors. While one such factor is whether the claim has the "appearance of merit," that requires the Court to determine only that the claim is not "patently groundless, frivolous, or legally defective," and "the record as a whole . . . must give reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl, 1977] [citations and internal quotation marks omitted]). And on the renewal motion, the Court had to determine if claimant had presented "new facts" which altered the prior ruling (see CPLR 2221[e]).
The determination by the Court that claimant's renewal motion presented new evidence of a contractual relationship by SUNY in regard to claimant's work, that warranted finding a reasonable basis to believe that a meritorious cause of action existed, in no way demonstrates prima facie the absence of a question of material fact on this question. While it seems apparent from the language used in Judge Schweitzer's decision that claimant submitted some evidence from which the Court reached its conclusion regarding SUNY's role in contracting for Hynson's work, there is no intimation in the record on this motion as to what such evidence might be. Moreover, to the extent the prior decision can be read as making an explicit factual finding, it was not necessary to that ruling, and therefore does not bind the Court in this entirely different context. In short, the statement in a prior judicial opinion cannot bear the weight of claimant's prima facie burden, and the motion must be denied on that ground alone.
In any case, even were I to hold that claimant presented a prima facie case against the State, the motion would fail nonetheless, as defendant has pointed to evidence raising a question of fact as to whether Hynson was the sole proximate cause of his fall, which provides a sufficient alternative ground for denying claimant summary judgment (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).
This "sole proximate cause" standard is not met merely by showing that claimant's conduct was a cause of the incident (see Daley v 250 Park Ave., LLC, 126 AD3d 747, 748 [2d Dept 2015]). Instead, defendant can prove "sole proximate cause" by showing that claimant is aware he is expected to use safety equipment but does not for "no good reason" (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]), that he was injured because he did not follow safety instructions (see Allan v DHL Express (USA), Inc., 99 AD3d 828, 833 [2d Dept 2012] [summary judgment denied in light of evidence that injury resulted from claimant climbing down from scaffold, rather that using ladder as he was instructed]), that claimant engaged in an "unnecessary and unforeseeable" act that placed him in danger (see Lin v City of New York, 117 AD3d 913, 914 [2d Dept 2014]), or that claimant's own misuse of the equipment caused injury (see Daley, 126 AD3d at 749). The last test is met, for example, when a ladder is available, but claimant chooses to use a different and riskier mode of ascending to his work space that results in his injury (see Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005] [plaintiff was sole proximate cause of injury when, although ladders were available, he used a bucket to ascend, and jumped down to descend]; see also Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [worker sole proximate cause when he used ladder that was too short, although he knew taller ones were available]).
Here, claimant's own testimony shows he ascended a baker scaffold without determining if it was complete, or if there was safety equipment or specific instructions provided to those working on it. Moreover, the record presents a question of fact as to whether claimant could and should have performed the work using his ladder. While he maintains that he was not allowed to move the debris on the floor to make room for his ladder, he acknowledges that he made no inquiries to address this issue, and instead decided that the scaffold had been fully assembled and was available. In light of this evidence, there is a question of fact as to whether claimant's actions in climbing and moving across the scaffold were "unnecessary and unforeseeable," and brought about his fall. Thus, defendant has pointed out issues of fact which preclude the Court from resolving the question of whether claimant was the "sole proximate cause" of the accident in this decision.
Claimant argues that the fact that he was not engaged in his particular assigned work does not place the injury he suffered outside the scope of section 240(1) (see Reply Aff. ¶ 14). In this, he is correct (see e.g. Reinhart v Long Is. Light. Co., 91 AD2d 571 [1st Dept 1982] [defendant liable for claimant's injury when claimant fell during discussion of colleague's payroll problem]). But the question here is not whether claimant's actions are covered by section 240(1), but whether claimant may have been the sole proximate cause of the accident when he mounted a scaffold whose provenance and status were unknown, and moved across it to assist another individual.
Accordingly, claimant's motion no. M-86375 is denied.
July 14, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Claimant's Notice of Motion, Affirmation in Support and annexed exhibits. 2. Defendant's Affirmation in Opposition and annexed exhibits. 3. Claimant's Reply Affirmation.