Opinion
# 2012-039-280 Claim No. 111524
01-12-2012
MURO v. STATE OF NEW YORK
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that claimant has failed to prove his Labor Law and negligence claims against defendant. Claimant presented insufficient evidence of a nexus between defendant and claimant upon which to premise liability upon defendant as an "owner" under the Labor Law §§ 240 (1) and 241 (6). Claimant also failed to prove that a dangerous condition existed on the property upon which to premise liability upon the owner of the property under negligence principles. Case information
UID: 2012-039-280 Claimant(s): INNOCENT MURO Claimant short name: MURO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111524 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Ketover & Associates, LLC Claimant's attorney: By: Joshua Ketover, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: John L. Belford, IV Assistant Attorney General Third-party defendant's attorney: Signature date: January 12, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Innocent Muro filed this claim with the Clerk of the Court of Claims on October 19, 2005. The claim arises from a fall claimant had on January 20, 2005, while working in the attic of a building known as Building 26, located at the Pilgrim Psychiatric Center (hereinafter "Pilgrim") in Brentwood, New York. The claim alleges that defendant State of New York violated New York Labor Law §§ 240 (1), 241 (6) and 200, and that defendant was negligent. This Court previously denied defendant's motion for summary judgment, in large part, on the grounds that material issues of fact existed regarding defendant's ownership of Building 26 (see Muro v State of New York, UID No. 2007-039-063, Claim No. 111524, Motion No. M-73713, February 21, 2008 [Ferreira, J.]). A trial on liability was held on May 23, 2011 and May 24, 2011. In addition to his own testimony, claimant called Paul Bugoni as an expert on real estate matters and Robert Ryan, the Plant Superintendent at Pilgrim. Defendant offered the testimony of David Galligan, an employee with the Dormitory Authority of the State of New York (hereinafter "DASNY") and Mauro J. Lapetina, DASNY's Managing General Counsel. In addition, numerous documents, photographs and maps were offered and received into evidence. Post-trial memoranda were requested and submitted.
Facts
The facts surrounding claimant's accident are relatively uncontroverted. On January 20, 2005, claimant, an information technology specialist employed by DASNY, was assigned to perform field work in Long Island (Vol.1 at 24).His tasks that day included moving the computer equipment of Galligan and another DASNY employee from offices at SUNY Stonybrook to offices at Building 26 at Pilgrim (Vol.1 at 25-26). Once at Pilgrim, claimant's job was to set up their computers, install the necessary hardware, and make the appropriate network connections so that field office employees were connected to the DASNY network (Vol.1 at 27-29). To complete this task, claimant had to locate the "drop point", which is the place in the building where the internet service provider installed the internet connection point (Vol.1 at 29-31, 50). Here the drop point was at the rear of Building 26 and Galligan's office was in the front of the building (Vol.1 at 31). After setting up the computers, claimant began the process of determining how to install the wiring and cabling from the drop point to the front offices (Vol.1 at 32, 88-89). Claimant testified that he was told by people in the building that he could not access the room where the drop point was located, nor could he drill through the walls (Vol.1 at 30-32, 46, 49). Claimant attempted to run the wiring by standing on a ladder and pushing the wiring through the drop ceiling and insulation (Vol.1 at 57, 61-63). This effort to pull the wiring through the drop ceilings proved "next to impossible because there's too much insulation, I couldn't see nothing" (Vol.1 at 32, 65). Claimant tried to move the insulation out of the way "but it was just too, it was too heavy, it was impossible. I couldn't see nothing" (Vol.1 at 65). He stated that he tried three different locations to run the wiring through the drop ceilings (Vol.1 at 66). He then asked DASNY employees "what's the other way of getting up here so I can get these wires?" (Vol.1 at 32). Claimant was told there was a staircase in the front of the building that accessed the attic (Vol.1 at 33). During cross-examination, he stated that he believed Galligan or the other person he was installing the computers for, suggested claimant access the attic (Vol.1 at 66).
References to the trial transcript are delineated herein as (Vol. 1 at __) for May 23, 2011 and (Vol. 2 at __) for May 24, 2011.
Photographs of the attic were received into evidence (claimant's exhibits 1-4; defendant's exhibits A-C). The photographs show a catwalk or walkway comprised of plywood floor boards encompassing the perimeter of the attic, with crossbeams, insulations and wires visible in the interior of the attic (claimant's exhibits 1, 2 and 3; defendant's exhibits A, B and C; Vol.1 at 68). Claimant stated that he had to find the necessary wire from a "tangled . . . bundle of wires" strewn across the attic beams and insulation, and drop the wire down to the offices (Vol.1 at 37, 78-79). His objective was to drop the wire adjacent to Galligan's desk (Vol.1 at 108-109). After finding the wire he needed and then attempting to get into a position to drop the wire he "stepped on one of the boards, it just gave way" (Vol.1 at 39; see also Vol.1 at 43, 78-79).The board claimant stepped on that gave way was fastened from beneath the cross-beam or ceiling joist (Vol.1 at 83; defendant's exhibit E; see also claimant's exhibits 1 and 3). On exhibit 3, claimant marked his first step from the catwalk with an "X" and then marked his next steps as "2" through "5", with "5" marking the spot where he believed he fell (Vol.1 at 74; see also Vol.1 at 79-80; defendant's exhibit B). Claimant agreed that he was balancing on a two inch wide piece of wood and intended to move the insulation and drop the wire down to Galligan's office before falling (Vol.1 at 90-93). The hole created by claimant's fall is outlined in red in defendant's exhibit B. Also evident in that red-lined portion of exhibit B is the door to Galligan's office. After falling, he found himself dangling from the beam, with his leg wrapped around the beam, hanging upside down facing headfirst into the office (Vol.1 at 41-42, 96). Claimant estimated he fell "between four to five feet" between standing on the board and hanging upside down (Vol.1 at 96). Claimant stated that no one precluded him from accessing the attic nor instructed him on how to move around the attic (Vol.1 at 44). He also stated that he did not observe any safety devices at the work site (Vol.1 at 44). Claimant had never worked at Building 26 prior to his accident and had never previously run wires through drop ceilings (Vol.1 at 45, 64). Claimant stated that he was not wearing goggles or a helmet because he was working at an office (Vol.1 at 97) and had never worn or been trained to use a safety harness for his job with DASNY (Vol.1 at 98). Paul Bugoni, an attorney with a New York title insurance company, testifying on behalf of claimant as an expert in real estate matters and property conveyances, stated that the area referred to as Building 26 was conveyed in a 1928 deed to defendant in fee simple (Vol.1 at 123-125; claimant's exhibit 5). Upon being shown a copy of a 1990 deed concerning the same property, Bugoni had concerns about the document because there were no markings indicating the deed was ever recorded (Vol.1 at 132-133), although he acknowledged that "[a] deed does not necessarily have to be recorded in order for it to be effective" or valid (Vol.1 at 136). He stated that the 1990 deed purports to show a transfer of the property from the State of New York to DASNY's predecessor in interest (Vol.1 at 134), and noted that the deed contained "a lot of conditions . . . which pertain to financing" including "numerous financing bonds" (Vol.1 at 135). He stated further that:
Claimant also referred to the portion of the attic that he stepped on and fell from as a "plank" (Vol.1 at 38).
"If I were gonna set this out in a title report I would put, uh, title is in DASNY as a successor interest subject to, and I would list all the conditions. So, its, its, there would be exceptions. So, from my term from, to put it in perspective, it's not a fee simple absolute deed, alright. Its not a - there are conditions"(Vol.1 at 136). In his redirect examination, he recalled that one of the conditions in the deed may have been a reverter, meaning "that the grantor can retain title or get back title in the event a condition isn't met by the grantee" (Vol.1 at 139). He agreed that restrictions in the 1990 deed qualified DASNY's ownership interest and that his review of such deed indicated that defendant "intended to transfer an interest subject to those conditions" (Vol.1 at 140, 141; see also Vol.1 at 143, 146-147).
Robert Ryan, worked for the New York State Office of Mental Health (hereinafter "OMH") as the Plant Superintendent at Pilgrim in January 2005 (Vol.1 at 154, 167). In that position, which he held since 2002, he oversaw maintenance, engineering, transportation and the grounds at Pilgrim (Vol.1 at 150, 168), and supervised 65 to 75 employees (Vol.1 at 169). His maintenance duties ranged from routine building maintenance to "major" building rehabilitation (Vol.1 at 151, 170). He stated that at the time of the accident, Building 26 housed the OMH maintenance office and DASNY (Vol.1 at 152-153, 160), but could not answer with any degree of certainty as to who owned Building 26 (Vol. 1 at 158). Ryan stated that OMH's maintenance staff performed the actual conversion of Building 26 into office space (Vol.1 at 170), and that OMH staff maintained Building 26, and had renovated the attic space and installed the drop ceiling (Vol.1 at 160, 164, 170, 174, 188).OMH and DASNY moved into Building 26 in 2000, with OMH occupying about 75% of the building and DASNY occupying 25% of the premises (Vol.1 at 171, 160). DASNY had its own entrance and their spaces were separated by walls and doors (Vol.1 at 171-173).
OMH maintenance also fixed the drop ceiling after the accident (Vol.1 at 164, 185).
The drop ceiling and attic space where the accident occurred had been remodeled by OMH as part of the project to convert Building 26 into office space (Vol.1 at 173-174, 188). The catwalk shown in defendant's exhibit B encompasses the perimeter of the attic and had been installed for maintenance purposes to allow maintenance staff to access the attic space (Vol.1 at 175-176; claimant's exhibit 2). The two by fours, marked in orange on defendant's exhibit A, located off the catwalk were not designed to support a person's weight (Vol.1 at 180).The area where claimant fell was "eight to ten feet" from the catwalk (Vol.1 at 182). Ryan stated that his staff was neither aware nor was notified that claimant would be accessing and working in the attic space on January 20, 2005 (Vol.1 at 184). Neither he nor his staff supervised or controlled any of the work performed by claimant that day (Vol.1 at 184).
The photographs shown in defendant's exhibit B and claimant's exhibits 2 and 3 depict the same area (Vol.1 at 180).
David Galligan, a Project Manager for DASNY, testified that claimant had come to his office on the day of the accident at Building 26 to install computer wiring (Vol. 2 at 8-9). He recalled that claimant was having difficulty installing the wiring and that he had provided him a ladder (Vol. 2 at 11). He stated that the type of work claimant was performing would not involve notifying defendant and that no one from DASNY or OMH was supervising claimant's work (Vol. 2 at 17, 28). After hearing the sound of claimant's accident, he ran from his office to the hallway, found claimant dangling and then helped him to the ground (Vol. 2 at 18-19).
Mauro J. Lapetina, the Managing General Counsel for DASNY, testified that a copy of a deed, identified as defendant's exhibit D, reflected the conveyance of real property, which included Building 26, to the Medical Care Facilities Finance Agency ("MCFFA") from defendant on March 21, 1990 (Vol. 2 at 42, 50, 56, 69-70, 73). By statute, property held by MCFFA passed to DASNY in 1995 (Vol. 2 at 55, 60, 98). He stated that he oversaw the preparation of the 1990 deed and was involved in its drafting (Vol. 2 at 55, 57).
As of January 20, 2005, Lapetina stated that "the Dormitory Authority owned building 26" (Vol. 2 at 73). He based that conclusion on the passing of the deed to DASNY in 1995 and DASNY occupying space in Building 26 (Vol. 2 at 74-75). However, he acknowledged that the grant of property to MCFFA "was not a fee simple absolute . . . I can't recall the term that's used in the States Powers and Trust Law, but, um, there was in this deed a right of reverter" (Vol. 2 at 89). Under the right of reverter in the deed, the State receives the property back upon "completion of the financing obligations . . . and also payment of any fees or other things that go along with the financing" (Vol. 2 at 91; see also Vol. 2 at 99). Lapetina agreed that based on the reverter language in the deed, defendant never intended to give a fee absolute transfer to MCFFA (Vol. 2 at 91-92). Lapetina also stated that maintenance in Building 26 was performed by OMH (Vol. 2 at 102-103, 106).
Discussion
Based upon the legal principles set forth below and their application to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant has not proven, by a preponderance of the credible evidence, his causes of action sounding in Labor Law and negligence against defendant.
Labor Law § 240 (1) provides, in relevant part, that
"[a]ll 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."
This provision "imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2006]). The purpose of this statute "is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves" (Panek v County of Albany, 99 NY2d 452, 457 [2003]; see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004]), and the statute is to be liberally construed to effectuate its purpose (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). "[T]he duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993];Edgar v Montechiari, 271 AD2d 396, 397 [2000]). However, "ownership of the premises where the accident occurred - standing alone - is not enough to impose liability under [the] Labor Law . . . where the property owner did not contract for the work resulting in the [claimant's] injuries" (Morton v State of New York, 15 NY3d 50, 56 [2010]; see Scaparo v Village of Ilion, 64 AD3d 1209, 1211 [2009], affd 13 NY3d 864 [2009]). In order to impose liability upon the owner in such cases, there must be "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" (Abbatiello v Lancaster Studio Assoc., 3 NY3d at 51; see Morton v State of New York, 15 NY3d at 56).
As to the threshold issue of ownership, defendant argues that it is not liable under the Labor Law because Building 26 is owned by DASNY, not defendant, and defendant had no involvement with DASNY's operations in Building 26. The evidence and trial testimony established that defendant owned Building 26 in fee simple absolute until 1990, when it deeded Building 26, along with other property, to MCFFA, DASNY's predecessor in interest.MCFFA was a public benefit corporation that, among other things, sold bonds to finance the improvement of facilities for various State agencies. The 1990 deed provides, among other things, that MCFFA had issued bonds "for the purpose of financing the design, construction, acquisition, reconstruction, rehabilitation, improvement and equipment of mental hygiene facilities throughout the State of New York" and that the conveyance was made "in order to permit such financing " (Defendant's exhibit D, at 1). The deed further states that all of the property conveyed to MCFFA will revert to defendant "at such time as all Annual Payments due or to become due to [MCFFA], and any sums for interest thereon . . . have been paid, and [MCFFA] shall have paid and retired all of the bonds issued by it to finance the cost of all Projects" (id. at 3). The deed specifically provides that, upon the occurrence of this condition, "all the right, title and interest of [MCFFA] in and to such Property shall cease and determine and such Property shall be and become the property of [defendant] without the necessity of further entry thereupon" (id. at 3).
The conveyance of the property was facilitated by another related public benefit corporation, the Facilities Development Corporation (hereinafter FDC). In 1995, DASNY became the successor in interest to both MCFFA and FDC pursuant to the Public Authorities Law and succeeded to all of its assets.
Lapetina testified that the 1990 deed transferred ownership of the property to MCFFA, that DASNY took over ownership of the property in 1995 and that DASNY owned the property in 2005 at the time of the accident. However, Lapetina's testimony on this point is conclusory and not consistent with the unequivocal language of the deed, which establishes that, in fact, defendant conveyed the property to MCFFA only until it had received all annual payments and paid and retired all of the bonds it had issued, after which time ownership would automatically revert to defendant. Indeed, Lapetina conceded that the transfer was not a fee absolute transfer because of the right of reverter language in the 1990 deed.Importantly, the Court received no evidence as to whether, at the time of the accident, the conditions had been met, triggering reversion of the property to defendant pursuant to the language in the deed. Thus, the Court finds that it cannot discern from the evidence before it exactly what legal interest defendant held in the property at the time of the accident.
Claimant's expert, Bugoni, gave similar testimony indicating the deed was not a fee simple absolute and subject to conditions.
Nevertheless, an owner of property cannot avoid liability under the Labor Law by temporarily transferring ownership of the property to another where the transfer clearly amounts to "nothing more than a financing mechanism, not a genuine transfer of ownership" (Vigliotti v Executive Land Corp., 186 AD2d 646, 647 [1992]; Collins v County of Monroe Indus. Dev. Agency [COMIDA], 167 AD2d 914, 915 [1990], lv dismissed 77 NY2d 874 [1991]). Here, the 1990 deed conveyed the property on a temporary basis and specifically provided that the conveyance was made for the purpose of financing mental hygiene facilities. Notably, consideration given for the transfer was one dollar (Vol. 2 at 92). Under these circumstances, the Court finds that conveyance was more akin to a financing mechanism than a genuine transfer of ownership and that the transfer, alone, does not absolve defendant from potential liability as an "owner" of the property under the Labor Law (see Vigliotti v Executive Land Corp., 186 AD2d at 647).
In any event, the Court finds that there is insufficient evidence of a nexus between defendant and claimant upon which to premise liability upon defendant under the Labor Law. The evidence before the Court does not establish what legal relationship, if any, existed between OMH and DASNY in relation to Building 26 at the time of the accident. Lapetina testified - contrary to his testimony that DASNY owned the building - that DASNY had a right to occupy Building 26 pursuant to statute (see McKinney's Unconsolidated Laws of NY § 4409 [5]) ([Vol. 2 at 76, 127]), and both Ryan and Lapetina testified that no lease agreement existed between OMH and DASNY (Vol. 1 at 198, 199; Vol. 2 at 133). It is undisputed that, at the time of the accident, claimant was an employee of DASNY and was doing work for DASNY in an office occupied by DASNY in Building 26. Although OMH - and therefore defendant - managed the building, installed the attic and drop ceiling that is the subject of this lawsuit and repaired the ceiling after the accident, it is undisputed that defendant did not contract for the specific work that claimant was performing and that claimant was performing the work for DASNY alone and not by reason of any action by defendant. Importantly, there is no evidence of a lease agreement, grant of an easement or other property interest that would create the requisite nexus between defendant's ownership interest in the property and the work that claimant was performing (see Morton v State of New York, 15 NY3d at 55-58; Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009]; Fallon v Flach Dev. & Realty, Inc., 71 AD3d 1258, 1259-1260 [2010]). The evidence reveals only that defendant deeded the property to DASNY's predecessor on a temporary basis approximately 15 years prior to the accident and that, at the time of the accident, no lease agreement existed between DASNY and defendant. Without more, the Court declines to impose liability upon defendant as an "owner" under Labor Law § 240 (1), and claimant's cause of action pursuant to that section is dismissed. For the same reasons, claimant's cause of action pursuant to Labor Law § 241 (6), which "requires owners and contractors to 'provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502, quoting Labor Law § 241 [6]), is also dismissed (see Morton v State of New York, 15 NY3d at 56).
The Court reserved decision on the admissibility of claimant's exhibit 6, an exhibit containing financial information pertaining to DASNY. Upon review, the exhibit is received into evidence, although the Court accords the document, prepared by an outside consultant, minimal weight to the issue of DASNY's ownership of the property at the time of the accident.
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Turning to the Labor Law § 200 and common-law negligence claims, "Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (D'Elia v City of New York, 81 AD3d 682, 683 [2011]; see Cody v State of New York, 82 AD3d 925, 926 [2011]). "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' " (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993], quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 317, [1981]; see Timmons v Barrett Paving Materials, Inc., 83 AD3d 1473, 1476 [2011], lv dismissed and lv denied 17 NY3d 843 [2011]; Soshinsky v Cornell Univ., 268 AD2d 947, 947 [2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61 [2008]; see Cody v State of New York, 82 AD3d at 925). In cases where, as here, it is alleged that a worker was injured as a result of a dangerous or defective condition on the premises, "property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d at 61; see Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [2011]). However, the owner of property has no duty to ensure safety " 'against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence, and experience' " of the claimant (Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963], quoting McLean v Studebaker Bros. Co. of New York, 221 NY 475, 478 [1917]; see Dorr v General Elec. Co., 235 AD2d 883, 885 [1997]).
Here, claimant's testimony and photographs of the attic space established that the accident occurred as a result of claimant stepping on a board which was fastened from below and which was not a part of the catwalk or walkway designed for foot traffic. Under these circumstances, the alleged dangerous condition or defect was readily observable to claimant. Specifically, claimant would have ascertained that, when he left the safety of the walkway, he could have stepped on an area of the attic floor that was not designed to, or able to, support his weight. Under these circumstances, the Court finds that claimant has failed to prove that a dangerous or defective condition existed on the property upon which to premise liability upon the owner of the property (see Soshinsky v Cornell Univ., 268 AD2d at 947). Additionally, it is undisputed that defendant neither retained nor exercised any control over claimant's work. Thus, claimant's Labor Law § 200 and negligence claims against defendant are also dismissed.
Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
January 12, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims