Opinion
# 2018-053-549 Claim No. 127260 Motion No. M-92266
09-21-2018
JASON JIMENEZ v. THE STATE OF NEW YORK
SACKS AND SACKS, LLP BY: Edward W. Ford, Esq. FABIANI COHEN & HALL, LLP BY: Alisa Dultz, Esq.
Synopsis
Claimant's motion for summary judgment with respect to a Labor Law 241 (6) cause of action alleging violations of 12 NYCRR 23-4.2 (k), 23-9.4 (h) (4) and 23-9.5 (c ) is denied as claimant failed to establish that any of the three regulations apply to the facts of this case.
Case information
| UID: | 2018-053-549 |
| Claimant(s): | JASON JIMENEZ |
| Claimant short name: | JIMENEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127260 |
| Motion number(s): | M-92266 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | SACKS AND SACKS, LLP BY: Edward W. Ford, Esq. |
| Defendant's attorney: | FABIANI COHEN & HALL, LLP BY: Alisa Dultz, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | September 21, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action arises from a construction accident that occurred on September 29, 2015. Claimant Jason Jimenez was injured while working at the Kosciuszko Bridge construction project (the Project) when he was struck on the right side of his head and shoulder by the bucket of a pay loader. The claim was filed on December 23, 2015 and an answer was filed by the defendant State of New York on January 26, 2016. Claimant's motion is for summary judgment with respect to his Labor Law § 241 (6) cause of action alleging that the State violated New York Industrial Code regulations 12 NYCRR §§ 23-4.2 (k), 23-9.4 (h) (4), and 23-9.5 (c). The State opposes this motion alleging that claimant has failed to meet his burden of proof to establish any violation of the New York Industrial Code.
FACTUAL BACKGROUND
The claimant is a laborer for Local 731 and on the day of the accident, he was working under the Kosciuszko Bridge in the borough of Brooklyn, City and State of New York. The claimant testified during his deposition that on the day of the accident, that he was instructed by his foreman, Natale Ammirati, to level crane mats. He testified that crane mats were utilized on the construction site to help balance and stabilize cranes during their operation. Specifically, claimant was instructed to use a hand shovel to level the crane mats prior to the crane being placed on top of the mats. Claimant testified that immediately prior to the accident, he was instructed by Mr. Ammirati to dig and expose a water valve cover so that construction machinery working in the area would not mistakenly run over it. In less than a minute after he began digging around the water valve cover, the arm of a pay loader working in that vicinity rotated towards him and he was struck by its bucket on the right side of his head and shoulder.
Claimant testified during his deposition that he had noticed the pay loader or excavator as it was referred to in questioning before he began digging but at that point it was located more than 20 feet from him. He stated that he did not see the excavator again until he was struck by its bucket. Claimant testified that he was looking down at the water valve when he was struck by the excavator's bucket. He testified that he did not hear any warning or receive any instruction that he should get out of the way of the excavator and that the excavator was not supposed to be operating in the area where he was working. He also testified that no flag man or spotter was working with the operator of the excavator at the time the accident occurred.
Shnehal Shah, a construction manager for the New York State Department of Transportation (DOT) was deposed during the course of pretrial discovery. Mr. Shah testified that he has been employed by DOT for over 24 years and that he worked on the Project and was familiar with the contract that was awarded to a joint venture of three companies known as Skanska-Kiewit-Ecco III JV (SKE) in 2014. He testified in his deposition that the Project was a design built job and as construction manager, he was responsible to manage and inspect the construction activities and inspect all aspects of the Project.
Shah testified that in order to build the new bridge it was necessary to construct all of the footings and column beams, which required excavation. He stated that the excavation work was performed by the contractor, SKE. Shah testified that under the contract with DOT, SKE retained the services of Liro as prime inspection contractor to inspect the job site daily and provide safety inspections. Shah also testified that SKE was required to record and submit accident reports on all workplace accidents to DOT and that DOT retained these accident reports in the ordinary course of business.
Shah identified the SKE Safety Injury Report attached as Exhibit 7 to claimant's motion papers. He testified that he first reviewed this accident report concerning claimant's accident prior to his deposition. This accident report indicates and Shah confirmed in his deposition that there was both a pay loader and a 312C excavator at the work site where the claimant's accident occurred. Shah stated that it is required that a "competent person" be present while an excavator is operating and that he didn't know if a flag man was required. He identified photo Exhibit F as depicting the rear portion of a 312C excavator and photo Exhibit H depicts the same excavator and the bucket (both attached as Exhibit 6 to claimant's motion papers). He also testified that the bucket of the excavator can rotate 360 degrees and that the operator is to be able to see the bucket at all times and the competent person is to maintain eye contact with the excavator operator to ensure that he doesn't hit anybody or anything. Shah did not know whether a competent person was present when the subject excavator was operating at the time of the accident. 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]; Castlepoint Ins. Co. v Command Sec. Corp., 144 AD3d 731 [2016]). 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). As a motion for summary judgment is the procedural equivalent of a trial, the motion must be denied if any doubt exists as to a triable issue of fact (Dykeman v Heht, 52 AD3d 767, 769 [2d Dept 2008]).
In the claim, it is alleged that the State violated section 241 (6) of the Labor Law, which provides that:
" 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 subdivision, 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 L.A. Wenger Contr. Co., 91 NY2d 343, 347 [1998]). Preliminarily, the State does not contest that it is the owner of the Kosciuszko Bridge where the accident occurred and thereby that Labor Law § 241 (6) applies to them as owner. In order to prevail on a Labor Law § 241 (6) cause of action, a claimant must establish that the defendant violated a specific as opposed to a general standard of conduct (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Rodriguez v D & S Bldrs., LLC, 98 AD3d 957, 959 [2d Dept 2012). The claimant contends that the State violated 12 NYCRR §§ 23-4.2 (k), 23-9.4 (h) (4) and 23-9.5 (c). In opposition, the State contends that the claimant has not established his prima facie burden that any of these three provisions apply and were violated as a matter of law.
The first regulation alleged by claimant to have been violated is 12 NYCRR § 23-4.2 (k), entitled, "Trench and area type excavations," which provides that:
"[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment."
Claimant contends that he has established a violation of this regulation based upon his deposition testimony that he was instructed by his foreman to work in an area where he was in danger of being struck by an excavator and the phrase in the SKE Safety Injury Report (Exhibit 7) which states "[e]mployee was directed to work in the swing radius of the excavator."
The Court agrees with the State that the SKE Safety Injury Report as submitted in this motion is inadmissible hearsay. The report is not certified and claimant has failed to include deposition testimony from an individual with personal knowledge regarding its preparation and who can establish either its authenticity or accuracy. The only deposition transcript referred to concerning the accident report was that of Mr. Shah, who did not witness the subject accident. Mr. Shah testified at his deposition that he did not prepare the accident report and had never seen it until the morning of his deposition when it was shown to him by his attorney prior to testifying. With respect to the accident report, Mr. Shah confirmed only that the SKE joint venture was responsible to prepare these reports every time there was a workplace accident. And while it is true that Mr. Shah testified that his employer, the DOT, receives and retains these accident reports, that does not satisfy the requirements of CPLR § 4518 (a) and make this accident report in the form submitted an exception to the hearsay rule (Lodato v Greyhawk N. Am., LLC, 39 AD3d 494 [2d Dept 2007]; see Kristo v Board of Educ. of City of N.Y., 134 AD3d 550 [1st Dept 2015]; Reed v New York City Tr. Auth., 299 AD2d 330 [2d Dept 2002]).
In addition, claimant did not include an expert affidavit to demonstrate that the language in this or the other two Industrial Code regulations are applicable to the facts of this case and how the State failed to comply with these regulations. The interpretation of an Industrial Code regulation presents a question of law for the court, but the meaning of specialized terms in a regulation is a question on which evidentiary proof must sometimes be presented before the court may make that determination (Morris v Pavarini Constr., 9 NY3d 47 [2007]). Claimant's deposition testimony indicates that he first noticed the excavator before he began digging but at that point it was located more than 20 feet from him and he did not see it again until he was struck by its bucket. There is no other proof submitted in evidentiary form to establish a violation of this regulation. I find that a question of fact exists as to whether at the time claimant noticed the excavator that he was then being "permitted to work in an area where [he] may be struck or endangered by any excavation equipment" or if the subsequent movement of the excavator brought claimant into an area within the meaning of this regulation. Without an expert affidavit, claimant has failed to eliminate all triable issues of fact (see Torres v City of New York, 127 AD3d 1163 [2d Dept 2015]). Accordingly, the claimant has not submitted evidentiary proof sufficient to establish a violation of this regulation.
The claimant next alleges that he has established a violation of 12 NYCRR § 23-9.4 (h) (4), entitled, "Power shovels and backhoes used for material handling," which provides under the general operation sub-paragraph that "[u]nauthorized persons shall not be permitted in the cab or immediately adjacent to any such equipment in operation." However, without an expert affidavit attesting to the applicability of the specialized language of this regulation, claimant has failed to establish a violation of this regulation. I find that questions of fact exist as to whether the excavator that struck claimant was equivalent to a shovel or backhoe and whether the excavator was being "used for material handling" within the meaning of this regulation (see St. Louis v Town of N. Elba, 16 NY3d 411 [2011]). I also find that a question of fact exists as to whether claimant was an unauthorized person within the meaning of this regulation (see Gonzalez v Perkan Concrete Corp, 110 AD3d 955 [2d Dept 2013]). The conclusory assertions in the claimant's attorney's affirmation also fail to establish whether claimant was "immediately adjacent" to the equipment, as required by this regulation (see Robinson v County of Nassau, 84 AD3d 919 [2d Dept 2011]). Accordingly, claimant has failed to establish a violation of this regulation.
The final regulation alleged by claimant to have been violated is 12 NYCRR § 23-9.5 (c), entitled "Excavating machines," which provides that:
"[e]xcavating machines shall be operated only by designated persons. No person except the operating crew shall be permitted on an excavating machine while it is in motion or operation. No person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation . . ."
In support, it is alleged that claimant's deposition testimony establishes that he was directed to stand within the range of the swing of the excavator while it was in operation and that claimant was not operating or assisting the operation of the excavator and was thereby not part of the excavating crew. Once again, without an expert affidavit, claimant failed to establish that the subject excavator was a "power shovel" and that the bucket was a "dipper bucket" within the meaning of this regulation. This regulation is not applicable unless the subject excavator meets the definition of this regulation. (see Ferreira v City of New York, 85 AD3d 1103 [2d Dept 2011]; Monsegur v Modern Comfort Tech., 289 AD2d 307 [2d Dept 2001]).
The claimant's attorney's reply affirmation contends that the State failed to establish that the three Industrial Code regulations are inapplicable to the facts of this case. That, however, is not the legal standard applied in a summary judgment motion. Initially, the burden of proof lies with the movant and here, claimant has failed to meet his burden to establish that the specialized terms of any of the three regulations apply to the facts of this case. Accordingly, in the absence of sufficient proof in admissible form and without any expert opinion addressing whether and how any of the three Industrial Code regulations apply, the Court finds that claimant has failed to establish his prima facie entitlement to judgment as a matter of law and the motion is denied (Ross v DD 11th Ave., LLC, 109 AD3d 604 [2d Dept 2013], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] and Giordano v Forest City Ratner Cos., 43 AD3d 1106 [2007]).
September 21, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1) Notice of motion and affirmation of Edward W. Ford, Esq., dated May 11, 2018 with annexed Exhibits 1-8; 2) Affirmation in opposition of Alisa Dultz, Esq., dated July 3, 2018 with annexed Exhibits A-B; and 3) Affirmation in reply of Edward W. Ford, Esq., dated July 20, 2018.