Opinion
# 2011-039-253 Claim No. 116097 Motion No. M-79601
09-30-2011
SIDER v. STATE OF NEW YORK
Synopsis
Defendant's motion for summary judgment is granted. Pursuant to Labor Law § 241 (6), Claimant alleges a violation of an industrial code regarding the provision of lighting during construction operations. Defendant offered sufficient proof in support of its motion to establish that the sweeper that struck claimant was equipt with operational headlights. Claimant put forth no evidence to create an issue of fact as to lighting at the job site. Claimant's Labor Law § 200 claim is also dismissed because there was no showing that defendant exercised direct supervisory control over claimant. Case information
UID: 2011-039-253 Claimant(s): VERNON SIDER Claimant short name: SIDER Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116097 Motion number(s): M-79601 Cross-motion number(s): Judge: James H. Ferreira Law Office of Jack Stuart Beige & Associates, Claimant's attorney: P.C. By: John G. Sommers, Esq. Cartafalsa, Slattery, Turpin & Lenoff Defendant's attorney: By: Robert H. Fischler, Esq. Third-party defendant's attorney: Signature date: September 30, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim arises from injuries sustained on August 21, 2007, when Vernon Sider (hereinafter "claimant") was struck by a motor vehicle known as a sweeper at a construction site. The accident took place at the Northern State Parkway (hereinafter "Parkway"), Nassau County, New York. The claim alleges a violation of Labor Law §§ 241(6) and 200.
Defendant moves for summary judgment pursuant to CPLR 3212.
Claimant was an employee of Tully Construction (hereinafter "Tully") and was employed as a laborer. The work being done on the west Parkway was being done between 9:00 p.m. and 5:00 a.m. The job required the Parkway to be closed and the night hours were to inconvenience the fewest amount of drivers. Sometime between 4:00 a.m. and 4:30 a.m. on August 21, 2007, claimant was standing alongside an SUV speaking to his supervisor, Paul Marcello (another employee of Tully). As claimant spoke to his supervisor, a sweeper drove by where claimant was standing. The brushes of the sweeper struck claimant, knocking him to the ground. Claimant indicates he went "flying through the air" (defendant's exhibit C, p. 58). Paul Marcello, at his deposition, confirmed claimant's account of the accident.
Defendant presented one other deposition in support of its motion to dismiss. The witness was Brian McNamara (hereinafter "McNamara"), the engineer in charge of this project for the NYS Department of Transportation (hereinafter "DOT"). McNamara testified this project was one of a couple he was overseeing at the same time (claimant's exhibit A, p. 13). According to McNamara, he worked from 7:00 a.m. to 3:30 p.m. every day. Once a week he would also work from 9:00 p.m. until 12:00 a.m. (defendant's exhibit E, p. 12). McNamara testified he was at the job site every day for some part of the day and spoke to Marcello almost everyday (claimant's exhibit A, p. 21).
Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Epstein v Scally, 99 AD2d 713 [1984]; Moskowitz v Garlock, 23 AD2d 943[1965]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if the movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Wanger v Zeh, 45 Misc2d 93 [1965], affd 26 AD2d 729 [1966]). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof, in admissible form, sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
Labor Law §241(6) states
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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
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.
In Rizzuto v L.A. Wenger Contr. Co., (91 NY2d 343, 348 [1998]), the court held
Labor Law 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Long v Forest-Fehlhaber, 55 NY2d 154, 160, rearg denied 56 NY2d 805; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299-300, rearg denied 45 NY2d 776). Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at 407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44 NY2d, at 300, supra).
To establish liability under Labor Law §241(6), Rizzuto stated
Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. (supra), we refined the standard of liability under section 241 (6) by requiring that the rule or regulation alleged to have been breached be a " 'specific, positive command' " (81 NY2d, at 504, supra), rather than a " ' reiteration of common-law standards' " which would merely incorporate into the State Industrial Code a general duty of care (id.). We distinguished between Code provisions "mandating compliance with concrete specifications and those that establish general safety standards" ( id. at 505), cautioning that any other rule would permit recovery under section 241 (6) against a nonsupervising owner or general contractor merely by application of broad, nonspecific regulatory language and "would seriously distort the scheme of liability … that has been developed in our case law" (id.at 504)
Rizzuto v L.A. Wenger Contr. Co., supra at 349.
From the evidence and arguments presented, it is clear that no significant issue of fact exists to prevent the Court from granting summary judgment. According to the papers presented to the Court, claimant alleges a violation of the applicable industrial code. Specifically, claimant cites 12 NYCRR § 23-1.30.
12 NYCRR §23-1.30 states
Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass.
In its supporting papers, defendant sets forth testimony of claimant that the sweeper was equipped with front headlights which were operational. There is no further mention in claimant's testimony of any lighting conditions or problems at the accident site. The Court finds defendant has sufficiently demonstrated a prima facie entitlement to summary judgment as a matter of law.
In response to this issue, claimant argues there is a "question as to whether the work site, more specifically[,] the roadway was properly and adequately illuminated so as to have prevented the sweeper vehicle from striking the claimant (claimant's counsel affirmation ¶11). However, claimant puts forth no evidence, in admissible form, sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof. In fact, claimant submits no proof to create an issue of fact as to the lighting at the job site.
Labor Law §200 is the codification of the common-law duty of an owner and contractor to maintain a safe work place for the protection of workers (Jock v Fien, 80 NY2d 965 [1992]; Romang v Welsbach Elec. Corp. 47 AD3d 789 [2008]). Liability will not attach to an owner absent some showing of supervisory control over the workers (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]; Angelucci v Sands, 297 AD2d 764 [2002]). Defendant must have actual supervision and control over the workers' activity. General supervisory control and to insure compliance with safety measures are not enough to impose liability (Damiani v Federated Dept. Stores, Inc., 23 AD3d 329 [2005]; see also, Hoelle v New York Equities Co., 258 AD2d 253 [1999]; Destefano v City of New York, 10 Misc3d 508 [2005], order affirmed as modified, 39 AD3d 581 [2007]).
There is no showing defendant had any direct supervisory control over claimant. Claimant relies on putting forth McNamara as the State employee who exercised supervisory control. McNamara was not at the job site when Tully's employees were present, except for possibly three hours a week.
Accordingly, for the aforementioned reasons, it is ordered that Motion No. 79601is granted and the claim is dismissed.
September 30, 2011
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion for summary judgment dated March 8, 2011 and filed March 18, 2011;
2. Affirmation of Robert H. Fischler, Esq., dated March 8, 2011 in support of defendant's motion for summary judgment, with exhibits;
3. Affirmation of John G. Sommers, Esq., dated May 2, 2011 and filed May 5, 2011, in opposition to defendant's motion, with exhibit; and
4. Reply affirmation of Robert H. Fischler, Esq., dated May 11, 2011 and filed May 16, 2011, in further support of motion.