Opinion
# 2016-031-094 Claim No. 122216 Motion No. M-88672
11-21-2016
NICHOLAS A. THOMASULO, JR. and MARIE THOMASULO v. THE STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA LLP BY: GREGORY P. KRULL, ESQ. BAXTER SMITH & SHAPIRO, P.C. BY: ARTHUR J. SMITH, ESQ.
Synopsis
Defendant has demonstrated that it did not direct or control Claimant's work, that no defective condition existed and that even if one did there is no evidence that Defendant created or had notice of such defect. Defendant's motion to dismiss claim based upon a violation of Labor Law § 200 is granted.
Case information
| UID: | 2016-031-094 |
| Claimant(s): | NICHOLAS A. THOMASULO, JR. and MARIE THOMASULO |
| Claimant short name: | THOMASULO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122216 |
| Motion number(s): | M-88672 |
| Cross-motion number(s): | |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA LLP BY: GREGORY P. KRULL, ESQ. |
| Defendant's attorney: | BAXTER SMITH & SHAPIRO, P.C. BY: ARTHUR J. SMITH, ESQ. |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2016 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers, numbered 1 to 5, were read on motion by Defendant for summary judgment dismissing the claim:
1. Defendant's Notice of Motion, filed May 23, 2016;
2. Affirmation of Arthur J. Smith, Esq., dated May 13, 2016, with exhibits;
3. Affirmation of Gregory P. Krull, Esq., dated August 12, 2016, with exhibits;
4. Reply Affirmation of Arthur J. Smith, Esq., dated August 23, 2016;
5. Filed documents: Claim and Answer.
I have before me Defendant's motion for summary judgment dismissing the claim. In their claim, which was filed on January 8, 2013, Claimants Nicholas A. Thomasulo, Jr. and Marie Thomasulo allege that, on May 25, 2011 at approximately 1:00 p.m., Nicholas A. Thomasulo, Jr. was seriously injured while disembarking from a boat in the course of his employment for P.S. Bruckel, Inc., a subcontractor who was hired to perform scaffolding work as part of the New York State Department of Transportation's maintenance of the Irondequoit Bay Bridge in Irondequoit, New York. Specifically, Claimants allege that Nicholas slipped on the rip-rap shore as he attempted to exit the boat. His left leg became wedged between a rock and the boat, causing him to sustain serious injuries that required surgery of his left leg and shin. The alleged basis for relief is the State's role as owner and/or contractor under section 200 of the Labor Law. Marie Thomasulo asserts a derivative claim for her loss of Nicholas's services, society, and companionship.
As Marie's claim is purely derivative in nature, all references to "Claimant" within this decision refer solely to Nicholas A. Thomasulo. --------
In support of its motion, Defendant argues that it neither directed or controlled Claimant's work activities on the day of the accident. Defendant also asserts that no hazardous condition existed, and that even if one did, Defendant did not create or have notice of that condition. Accordingly, Defendant argues that summary judgment is appropriate in this matter. Defendant has submitted the deposition transcripts of Claimant, his supervisor and various State employees who were involved with the project. These submissions clearly demonstrate that Defendant did not direct Claimant's work or exercise supervisory control over his actions.
In response to Defendant's motion, Claimants concede this point, but argue that Defendant is liable in this matter, nonetheless, as Claimant was injured as a result of a defect on the Defendant's property, and that Defendant either created or had notice of that defect.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 85, 853 [1985]). Once this showing has been made, the burden shifts to the opponent of 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 (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
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 v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; 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 Elec. & 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 on 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 [2d Dept 2011]).
Claimants argue that the rip-rap shoreline constituted a hazardous condition. They assert that Defendant, as owner of the property, most likely created that hazard, and in any event, had at least constructive notice of its defective condition because it had existed for some time before the accident.
Defendant contends that there is no evidence that Defendant was aware of the allegedly defective condition. Defendant correctly points out that Claimants have presented no evidence concerning who created that rip-rap shoreline and, accordingly, the allegedly defective condition. Claimants' assumption in this regard fails to constitute sufficient evidence to defeat Defendant's motion (Ziajka v Pace Plumbing Corp., 254 AD2d 480 [2d Dept 1998]). Moreover, although Claimants have quoted a small portion of the Engineer in Charge Thomas Leo Mialki's deposition transcript in an attempt to demonstrate that Defendant had notice that Claimant's employer was using the rip-rap shore to dock its boat, there is no indication of such awareness prior to Claimant's accident. Moreover, nothing in the record indicates that Defendant knew that Claimant's employer was using the rip-rap on the eastern shore as a dock.
Finally, I find that Claimant has failed to demonstrate the existence of a defect. Nothing in the record indicates a problem with the rip-rap shoreline. The rip-rap itself functioned in accordance with its design and did not constitute a dangerous condition or defect. The problem was Claimant's employer's use of this rip-rap as a place to dock its boat. Accordingly, I find that it was the manner in which the work was conducted, not a defect in the premises, that lead to Claimant's injury. "[T]he rule of law which makes it incumbent upon an employer to provide or maintain a safe place in which his employees are to do their work has no application . . . 'where the prosecution of the work itself makes the place and creates its danger' " (Citrone v O'Rourke Eng'g Constr. Co., 188 NY 339, 342 [1907], quoting O'Connell v Clark, 22 App Div 466, 467 [2d Dept 1897]; Imtanios v Goldman Sachs, 44 AD3d 383 [1st Dept 2007]; Jackson v Board of Educ. of City of N.Y., 30 AD3d 57 [1st Dept 2006]; Dumoulin v Oval Wood Dish Corp., 211 AD2d 883 [3d Dept 1995]; Patterson v Pasa, 203 AD2d 866 [3d Dept 1994]).
I find that even though Defendant had employees regularly on the site, general supervisory authority at the work site for purposes of overseeing the progress of the work is insufficient to impose liability (see Fisher v WNY Bus Parts, Inc., 12 AD3d 1138 [4th Dept 2004]). Further, no liability attaches where the alleged dangerous condition arises from the contractor's methods of performing the work, and the owner exercised no supervisory control over the activity (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876).
Based upon the foregoing, it is:
ORDERED, that Defendant's motion for summary judgment is GRANTED, and the claim is dismissed in its entirety.
November 21, 2016
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims