Opinion
# 2016-045-018 Claim No. 120854 Motion No. M-87462 Cross-Motion No. CM-87841
07-12-2016
In the matter of FRANK FIORDILINO v. THE STATE OF NEW YORK
Hach & Rose, LLP By: Michael A. Rose, Esq. Mound, Cotton, Wollan & Greengrass, LLP By: Steven A. Torrini, Esq.
Synopsis
Defendant's motion to dismiss Labor Law 240(1) and 241(6) claims. Claimant's cross-motion for summary judgment on 240(1) claim and question of fact on 241(6) claim.
Case information
| UID: | 2016-045-018 |
| Claimant(s): | In the matter of FRANK FIORDILINO |
| Claimant short name: | FIORDILINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120854 |
| Motion number(s): | M-87462 |
| Cross-motion number(s): | CM-87841 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Hach & Rose, LLP By: Michael A. Rose, Esq. |
| Defendant's attorney: | Mound, Cotton, Wollan & Greengrass, LLP By: Steven A. Torrini, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | July 12, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion and Defendant's Affirmation in Support with annexed Exhibits A-E.
Defendant, the State of New York, has brought this motion seeking an order for partial summary judgment dismissing claimant's Labor Law §§ 240 (1) and 241 (6) claims. In opposition, claimant filed a cross-motion seeking partial summary judgment in his favor on his Labor Law § 240 (1) claim.
The underlying claim in this action concerns an accident which occurred on May 18, 2011 at approximately 1:00 p.m. at the Roslyn Viaduct construction site in Hempstead, New York. At the time of the accident, claimant, Frank Fiordilino, was employed as a laborer by Tully Construction (Tully), the general contractor for the bridge reconstruction project. On the date of the subject accident, claimant and his co-worker, Raymond Siese, were power washing the concrete deck of the bridge structure.
The subject accident occurred as claimant and two co-workers, Mr. Siese and Tommy Gaynor, were going to lunch. In order to get back to the ground level from the bridge, claimant and his two co-workers rode in the bucket of the man-lift which they had used to get up to the level of the concrete deck of the bridge earlier that morning. Both claimant and Mr. Siese were wearing their safety harnesses which were hooked onto the railing of the man-lift. They entered the bucket when it was parked on the concrete deck of the bridge.
At the time of the accident the man-lift was being operated by claimant's foreman, Mr. Gaynor. Claimant and Mr. Siese were riding in the bucket with their safety harnesses hooked up to the railing. At some point the bucket became stuck under the railing on the pedestrian walkway of the bridge. Claimant further explained that the bucket got caught up on the plate of the permanent metal post on the concrete deck of the bridge structure. As Mr. Gaynor tried to move the bucket it began to rock back and forth like a pendulum. Claimant described the man-lift itself as also rocking with the wheels of the man-lift coming off the ground.
Claimant testified that as the man-lift was swaying back and forth, Mr. Siese fell out of the bucket and was hanging from the lanyard of his safety harness about five feet below the bucket for some 1½to 2 minutes. Claimant held onto the railing of the bucket to prevent himself from falling out of the bucket. Claimant stated that the bucket was approximately 90 feet above the ground. Claimant testified that he hurt his shoulder from holding on and straining himself while the bucket was swaying back and forth. Claimant believed that if Mr. Gaynor had first lifted the bucket of the man-lift before attempting to move it, he could have avoided it getting stuck.
Mr. Gaynor stated in his affidavit that after the three men entered the bucket and connected their safety gear, he attempted to bring them back down to the ground. He affirmed that the bucket got caught on a permanent post plate and that once the bucket broke free of the plate, the release of tension caused a catapult effect on the bucket. He stated that he was looking and facing the direction in which the bucket was moving at all times.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
Both parties moved for partial summary judgment under Labor Law § 240 (1).
Labor Law § 240(1) provides:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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."
The Court of Appeals has recognized that the various tasks for which these devices are customarily needed or used all entail risk because of the relative elevation at which the task must be performed or at which materials and loads must be positioned or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). In order to prevail on a claim under section 240 (1), a claimant must demonstrate that defendant violated its statutory duty to provide adequate safety devices and that the statutory breach proximately caused claimant's injuries (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]). The statute "imposes absolute liability where the failure to provide [proper] protection is a proximate cause of a worker's injury" (Fabrizi v 1095 Ave of the Ams., L.L.C., 22 NY3d 658, 662 [2014]).
"Nevertheless, it is settled that the extraordinary protections of the statute in the first instance apply only to a narrow class of dangers. More specifically, Labor Law § 240 (1) relates only to special hazards presenting elevation-related risks. Liability may, therefore, be imposed under the statute only where the [claimant's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 96-97 [2015][internal quotations and citations omitted]).
"Consequently, the protections of Labor Law § 240 (1) do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, liability [remains] contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Moreover, section 240 (1) is not applicable unless the [claimant's] injuries resulted from the elevation-related risk and the inadequacy of the safety device" (id. at 97 [internal quotations and citations omitted]).
The dispositive question is not whether claimant was actively performing a construction task at the exact moment of his accident (id.) "Rather, the relevant and proper inquiry is whether the hazard [claimant] encountered [while in the bucket] was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance. This is because, regardless of the type of safety device involved, liability arises under Labor Law § 240 (1) only where the [claimant's] injuries are the direct consequence of an elevation-related risk, not a separate and ordinary tripping or slipping hazard" (id. at 98, 99 [internal quotations and citations omitted]).
Defendant has established its prima facie burden by showing that claimant was in the bucket of a man-lift at the time of the subject accident and was provided with and used a safety harness and lanyard. In response claimant has failed to raise a triable issue of fact. The safety devices proved to be adequate in preventing claimant from falling in any way from his elevated position at the time of the accident. Claimant's injury was not the direct consequence of the application of the force of gravity to him (Gasques v State of New York, 15 NY3d 869 [2010]).
Claimant is seeking summary judgment on his behalf in his cross motion. , claimant's testimony raises the question as to whether the man-lift was properly secured to the ground at the time of the accident. Additionally, neither defendant nor claimant has proferred sufficient evidence to establish what constitutes adequate protection under the circumstances of this case. As a result the Court finds that there remain questions of fact which preclude the granting of summary judgment to either side at this juncture. Thus, both defendant and claimant have failed to satisfy their prima facie showing of entitlement to summary judgment as a matter of law on the issue of liability on claimant's Labor Law § 240 (1) cause of action.
The Court finds that the specific facts of this case do not support the finding of liability pursuant to Labor Law § 240 (1). It is clear that at the time of his accident claimant was subjected to an elevation related risk which required the use of a safety device, the float stage (Harkin v County of Nassau, 121 AD3d 942 [2d Dept 2014]; Dooley v Peerless Importers, Inc., 42 AD3d 199 [2d Dept 2007]). Claimant has established that it was the deficiency of the float stage which caused his fall. However, it was the risk of falling off or through the float stage into the water that was the hazard that brought about the need for the safety device in the first instance. The facts herein clearly establish that claimant was never in danger of falling off or through the float stage. Claimant's testimony established that hook holes were commonplace on float stages which were routinely used at similar work sites. Claimant's injury was caused by the usual and ordinary danger of the construction site which was distinct and unrelated to the elevation risk that called for the float stage in the first instance (see Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 [2015]). Thus, claimant has failed to satisfy his prima facie showing of entitlement to summary judgment on this issue. On its cross motion defendant has made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on claimant's Labor Law § 240 (1) cause of action. In opposition, claimant has failed to raise a triable issue of fact.
Defendant argues in its cross motion that it has no liability under Labor Law § 200 or common law since it did not perform any of the work itself and that it did not exercise supervision or control over the means and methods of the work being performed. Defendant also argues that it had no notice of any alleged unsafe condition that would cause such an accident or injury.
Section 200 of the Labor Law is a codification of the common-law duty imposed on owners and general contractors to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]).
"An implicit precondition to this duty 'is that the party charged with that responsibility have the authority to control the activity bringing about the injury' (Russin v Picciano & Son, 54 NY2d 311, 317). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v Stout, 80 NY2d 290, 295)." (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]).
Here, defendant failed to establish its prima facie burden that it did not have the authority to control the means or methods by which the work was performed and that it did not have notice of any alleged unsafe condition. The conflicting deposition testimony between claimant, Mr. Donovan and Mr. McMahon raises triable issues of fact on this issue. Additionally, liability may be imposed upon a property owner where claimant's injuries arose from an allegedly dangerous condition at the work site, when the owner had actual or constructive notice of the dangerous condition (Aragona v State of New York, 74 AD3d 1260 [2d Dept 2010]). Defendant failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly hazardous condition which caused claimant's accident.
Accordingly, the Court finds that defendant is not entitled to summary judgment dismissing the Labor Law § 200 and common law negligence causes of action.
Defendant also seeks summary judgment dismissing claimant's Labor Law § 241(6) claims.
Labor Law § 241(6) provides:
"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 of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to all persons employed in areas in which construction, excavation, or demolition work is being performed (see, Rizzuto v Wenger Contr. Co., 91 NY2d 343, 347; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). However, to prevail upon a Labor Law § 241(6) claim, a [claimant] must establish that the defendant violated a regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Whalen v City of New York, 270 AD2d 340)" (Miranda v City of New York, 281 AD2d 403, 404 [2d Dept 2001]).
Defendant argues that the various New York State Industrial Code (12 NYCRR part 23) violations raised by claimant as well as the alleged Occupational Safety and Health Administration (OSHA) and NYS DOT standard specification violations cannot form the basis for liability in this matter. It must be noted that the OSHA and DOT violations appear only under the heading for Labor Law § 200 in claimant's verified supplemental bill of particulars.
Claimant specifically alleges violations of the Industrial Code of the State of New York: 23-1.1; 23-1.3; 23-1.5; 23-1.7 (b) (1); 23-1.7 (e) (1); 23-1.7 (e) (2); and 23-5.1 (f) in his verified bill of particulars and verified supplemental bill of particulars.
Defendant argues that 12 NYCRR 23-1.1; 23-1.3; 23-1.5; and 23-5.1 are general provisions which cannot support a Labor Law § 241 (6) claim as a matter of law. Claimant does not dispute defendant's points on these sections of the code but rather discusses the two sections it contends form the basis of a Labor Law 241 (6) claim, 23-1.7 (e) (1) and 23-1.7 (b) (1).
Clearly sections 1.1, the title of the and citation of the part; and 1.3, the application section do not provide the basis for a Labor Law 241 (6) claim. Additionally, the sub sections of section 1.5, the general responsibility of employers, are either too general or do not apply to the facts of this case (Carrillo v Circle Manor Apts., 131 AD3d 662 [2d Dept 2015]). Defendant argues that the provisions of section 23-5.1, general provisions for all scaffolds, are too general to provide a basis for liability. Claimant cites specifically to section 23-5.1 (f) in his verified bill of particulars. Although other portions of section 23-5.1 may provide a basis for liability (see Harkin v County of Nassau, 121 AD3d 942 [2d Dept 2014]), section 23-5.1 (f) lacks the degree of specificity necessary to support a Labor Law 241 (6) claim (Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605 [2d Dept 2013]; Moutray v Baron, 244 AD2d 618 [3d Dept 1997] lv denied 91 NY2d 808 [1998]).
In regard to section 23-1.7 (b) (1), claimant concedes that the prevailing case law does not support a finding that defendant violated the section since claimant was unable to fall through the hook hole (DeLiso v State of New York, 69 AD3d 786 [2d Dept 2010]).
In regard to sections 23-1.7 (e) (1) and (e) (2), defendant argues three points. First, that the float stage was an integral part of the construction site. Second, that there is no allegation that claimant tripped over dirt, debris, a tool, a material or a sharp object and third, that claimant's incident did not occur in a passageway.
In regard to section 23-1.7 (e) (1) defendant failed to establish prima facie that the accident did not occur on a passageway (Costa v State of New York, 123 AD3d 648 [2d Dept 2014]) and whether the hook hole was an integral part of the construction (Aragona v State of New York, 74 AD3d 1260 [2d Dept 2010]).
In regard to section 23-1.7 (e) (2), defendant has satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that the hook hole was not dirt, debris, scattered tools and materials or a sharp projection (Aragona v State of New York, 74 AD3d 1260 [2d Dept 2010]).
Therefore, for the foregoing reasons, claimant's motion seeking partial summary judgment pursuant to Labor Law § 240 (1) is denied. Defendant's cross motion is granted to the extent that claimant's claims pursuant to Labor Law § 240 (1) and certain portion of claimant's § 241 (6) claims stated herein are dismissed. Defendant's motion is denied in all other respects.
The parties are directed to contact the Court upon receipt of this Decision and Order to schedule a trial conference in this matter.
Labor Law § 241(6) provides:
"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 of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to all persons employed in areas in which construction, excavation, or demolition work is being performed (see, Rizzuto v Wenger Contr. Co. 91 NY2d 343, 347; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). However, to prevail upon a Labor Law § 241(6) claim, a [claimant] must establish that the defendant violated a regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Whalen v City of New York, 270 AD2d 340)" (Miranda v City of New York, 281 AD2d 403, 404 [2d Dept 2001]).
Claimant specifically alleges a violation of the Industrial Code of the State of New York 12 NYCRR 23-9.5(g) which states:
"Backing. Every mobile power-operated excavating machine except for crawler mounted equipment shall be provided with an approved warning device so installed as to automatically sound a warning signal when such machine is backing. Such warning signal shall be audible to all persons in the vicinity of the machine above the general noise level in the area."
Labor Law § 240(1) provides:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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.
The Court of Appeals has recognized that the various tasks for which these devices are customarily needed or used all entail risk because of the relative elevation at which the task must be performed or at which materials and loads must be positioned or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).
"[T]he '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 (citation omitted). In other words, Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] (emphasis omitted).
In this matter there is conflicting testimony with regard to the height claimant fell and the mechanics of his fall.
In order to succeed on a claim under section 240 (1), a claimant must demonstrate that a violation of the statute proximately caused the injury and that "the injury sustained is the type of elevation-related hazard to which the statute applies" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]). In claims arising under section 240(1) the Court must determine "whether [claimant's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). There is conflicting testimony as to the distance claimant fell. Additionally, several of the witnesses offered their own estimates as to the height of the jack stand. There is no objective evidence of the actual size and dimensions of the unit. The provided photographs give the court some idea of the shape of the device and the positions of the various steel beams, but no measurements. As far as the red steel support beams themselves, which defendant posits were a "secure and stable platform" for claimant, there is no objective measurement of those anywhere within the record. The court cannot determine on this record whether the red steel beams, considering all of the circumstances, were proper protection for claimant for the work that he performed when his accident occurred (Toefer v Long Is. R.R., 4 NY3d 399 [2005]). Thus, there are numerous issues of fact that will have to be resolved at trial.
Therefore, for the foregoing reasons, claimant's motion for an order granting partial summary judgment is hereby denied.
The claim in this matter was filed with the Court on October 5, 2009. The claim was served upon the Office of the Attorney General by regular mail on September 28, 2009 and by certified mail, return receipt requested on December 7, 2009 (Def Exh A).
Issue was joined on November 4, 2009 (Def Exh B).
At the time of the claim herein, claimant was an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), under the name Rahbu Leonard and DIN NO. 96A3590 and NYSID No. 6642451Q (Def Exhs A, C). Claimant alleged in his claim, inter alia, that he was assaulted by two Corrections Officers on July 8, 2009.
On April 16, 2010, claimant, Rahbu Leonard (DIN No. 96A2590, NYSID No. 0064251Q, DOB 01/13/74), was discharged from Ulster Correctional Facility after reaching the maximum expiration of his sentence under DIN No. 96A2590 (Def Exh C).
Claimant returned to DOCCS custody on a new sentence in June 2012, under the name Anthony Newby and DIN No. 12R1804 (NYSID No. 0664251Q, DOB 01/13/74). He was paroled from Edgecombe Correctional Facility in December 2013 and reached maximum expiration on that sentence on October 4, 2014 (Def Exh C).
DOCCS records show that the last known address they have on file for claimant is The Freedom House, 6 Street Nicholas Terrace, New York, NY 10027 (Def Exh C).
There has been no activity in this claim since February 2010.
On February 12, 2015, defendant served the claimant at his last known address, by both regular and certified mail, return receipt requested, with a 90-day Demand to File a Note of Issue. The Demand letters directed claimant to serve and file a note of issue within 90-days of receipt thereof. The Demand letters also specified that a motion to dismiss the claim for unreasonably neglecting to proceed would result if claimant failed to do so (Def Exh D).
Both Demand letters were returned to defendant by the United States Post Office as attempted, with the notation "ATTEMPTED, NOT KNOWN" (Def Exh E).
The Uniform Rules for the Court of Claims, 22 NYCRR § 206.6 (f), require a pro se claimant to communicate with the Clerk of the Court of Claims in writing any address changes within 10 days thereof. If a demand is not received due to the failure to keep the Court and defendant apprised of a change of address, then service is deemed complete when made in accordance with CPLR 2103 (Ellis v Urs, 121 AD2d 361 [2d Dept 1986]). Here, service was complete upon mailing the Demand, by certified mail, to claimant's last known address.
Neither the Court nor defendant has received any note of issue in this matter nor has there been any other contact from claimant on this case since March 2010.
As a result, defendant filed this motion to dismiss the claim pursuant to CPLR § 3126. CPLR § 3126 provides for dismissal of a claim as long as certain conditions precedent have been met. Issue must have been joined in the action; one year must have elapsed since the joinder of issue; and service of a written demand, by registered or certified mail, must have been made against the party whom dismissal is sought to resume prosecution of the matter. The demand should require the service and filing of a note of issue within ninety days after receipt of such demand. The demand should also state that failure to do so will result in a motion to dismiss the claim.
Defendant has complied with the requirements of CPLR § 3126 in this matter. Of more significance, Court of Claims Act § 19 gives the Court discretionary authority to dismiss claims for failure to prosecute.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is hereby dismissed.
July 12, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims