Opinion
# 2013-015-395 Claim No. 118553 Motion No. M-82292 Cross-Motion No. CM-82426
01-18-2013
ADAM SKRZYPCZAK v. THE STATE OF NEW YORK
Synopsis
Motion for summary judgment dismissing claimant's negligence and Labor Law § 200 claims was granted where claimant failed to establish that the State exercised actual supervision and control over his work. Court held that the mere retention of the right to control the work was insufficient. Case information
UID: 2013-015-395 Claimant(s): ADAM SKRZYPCZAK Claimant short name: SKRZYPCZAK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118553 Motion number(s): M-82292 Cross-motion number(s): CM-82426 Judge: FRANCIS T. COLLINS Charles N. Rock, PLLC Claimant's attorney: By: Charles N. Rock, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Douglas R. Kemp, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: January 18, 2013 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the claim, which alleges causes of action for common law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). Claimant cross-moves to supplement his bill of particulars to add the specific regulation he claims was violated to support his Labor Law § 241 (6) cause of action.
Claimant, an employee of Best Roofing,seeks damages for personal injuries allegedly sustained on May 18, 2010 during the course of replacing the copper roof at Clinton Correctional Facility in Dannemora, New York. According to claimant's testimony at an examination before trial, his left thumb was severed when the blade of the circular saw he was using to cut wood in an aerial basket twisted and "kick[ed] back" (defendant's Exhibit H, EBT Tr. at 80). He testified, with the assistance of an interpreter, that he and his assistant, Gregory, were working on the details of a cupola on the roof of the building. Gregory was inside the cupola on the roof of the building measuring the dimensions of the wood that needed to be cut and claimant was situated in the aerial basket, approximately 90 to 100 feet from the ground, cutting the wood to the measurements Gregory provided. Claimant testified that the accident occurred while he was using a circular saw to cut a 1/2-inch thick, 12-inch wide and 24 to 25-inch long piece of wood lengthwise. Claimant, who is right-handed, used his left hand to hold the wood and his right hand to operate the circular saw. When asked what the wood was resting on as he was attempting to cut it, he responded: "I don't remember exactly, but I - I guess - it was - you know, that's very hard to me, to say that. I - I guess I put it on the railing of this, that I hold it . . . you know, and cut it. Basically that's - you know, that's - in this moment there, that's kicking me back" (defendant's Exhibit H, claimant's EBT Tr. at 79). He testified that the blade of the saw did not come in contact with the railing (id.) but did "some twists, and then, just fast, it kicks back" (id. at 80). Claimant testified he was almost to the end of the cut when the incident occurred. As for the cause of the accident, claimant testified as follows:
The claim and amended claim allege that claimant was employed by Elite Roofing & Maintenance Co. (Elite). The bill of particulars alleges the claimant was employed by both Elite and Best Roofing of New Jersey & New York, and claimant testified he was employed by Best Roofing.
Q. What do you think would have prevented the accident?
A. I guess, you know, if I - you haven't so much time, it was, you know, too much that the guy asked - they push us. It was after the deadline, you know, and that's - I guess if they'd let us cut it on the ground, but we hadn't possible because, you know, it was the danger place and they - they let us cut into the basket. I don't know, but that's my own opinion.
Q. You said your supervisor was Walter and your manager was Mike?
A. Yeah.
Q. Did either of them tell you, you needed to cut the wood in the basket as opposed to going on the ground?
A. No, they - they said, you can go up there and you can cut - cut the wood. The main focus for this guy was, you know, time. (id. at p. 83).
Claimant testified that the aerial lift was on level ground and the lift basket was not "shaky" (id. at 86-87).
Claimant testified that his daily work assignments were provided by either his Supervisor, Walter, or Manager, Mike, both of whom were Best Roofing employees (defendant's Exhibit H, EBT Tr. at 35, 36-37). A representative of the State was also present at the work site and, according to the claimant, inspected completed work and provided a punch list of work which remained to be performed (id. at 41). Claimant could otherwise recall no instances in which the site representative for the State had a "say" in the work (id.).
In addition to the claimant's examination before trial transcript, defendant also submitted in support of its motion the deposition transcripts of Brian Rabideau (defendant's Exhibit I) and Leroy Brown (defendant's Exhibit J). Mr. Rabideau was a Field Inspector employed by Gilbane, an outside firm retained by the State to perform construction inspection services, including replacement of the copper roof at the Clinton Correctional Facility (defendant's Exhibit I, Rabideau EBT Tr. at 19). According to Mr. Rabideau, he was present on the Clinton Correctional Facility job site for several hours a day, and performed inspection services at other jobs as well. He was not present at the time of claimant's accident.
Regarding his knowledge of any safety issues involving the manner in which claimant's work was performed, Mr. Rabideau testified as follows:
"Q. Is there . . . any safety issue that you're aware of regarding a worker using a circular saw inside a boom truck, inside the basket of a boom lift?
A. That's where they'd have their flat platform to stand . . . You're on the roof, some of them . . . couldn't stand there, so that's where they'd do their cutting to do the work in the cupolas. Because you would have a team of people; one would be in, one would be inside the basket.
Q. . . . [W]as there a surface anywhere where they could lay the wood down to use a circular saw for performing cuts within the basket?
A. Just the floor.
Q. . . . [I]s it physically possible to cut a piece of wood through on the floor of a basket of a boom truck?
A. I'm sure it's possible, yeah; blocking to where you don't run your saw through the bottom" (id. at 17).
Mr. Rabideau's responsibilities at the job site were to inspect the work and "to make sure the State got what they paid for" (id. at 15). If he observed a life-threatening condition, he would bring it to the attention of the site superintendent. However, according to Mr. Rabideau, "the site safety would have been under Best Roofing themselves; they have their own safety plan and management" (id. at 17-18). Although Mr. Rabideau acknowledged the fact that Best Roofing had been advised "during the bi-weekly meetings" that it was behind schedule (id. at 22), he testified that when the work was not progressing as scheduled Best Roofing "put more manpower on"(id. at 23).
According to Mr. Rabideau, inmates did not have access to the worksite, which was secured by correction officers. The only restriction on Best Roofing employees was that they were required to stay within the areas which were secured for them. According to Mr. Rabideau, no safety reason prevented Best Roofing employees from cutting wood on the ground. He did acknowledge, however, that approximately five minutes were required to descend a distance of 60 feet in a boom lift.
Leroy Brown, a Correction Officer at Clinton Correctional Facility, testified that he acted as escort officer for Best Roofing employees and provided security. If something fell from the roof, he would pick it up "so no inmate would get their hands on it" (defendant's Exhibit J, Brown's EBT Tr. at 12). He had no knowledge of where claimant sustained his injury; he did not observe men working in the aerial lift basket; he never observed anyone cutting wood and he never observed anything he thought was an unsafe work practice.
In support of its motion for summary judgment dismissing claimant's Labor Law § 240 (1) cause of action, defendant contends the claimant's injuries were not the result of an elevation related risk which the protections of section 240 (1) were intended to address. With respect to claimant's Labor Law § 241 (6) cause of action, defendant contends that dismissal is required because neither the claim nor the bill of particulars allege a violation of a specific, concrete section of the Industrial Code, and the claimant's proposed supplemental bill of particulars alleges a section of the Industrial Code which is inapplicable. Lastly, defendant seeks dismissal of both the common law negligence and Labor Law § 200 causes of action on the ground that it neither supervised nor controlled the manner in which claimant's work was performed.
In opposition to the defendant's motion and in support of the cross motion to supplement his bill of particulars to allege the particular section of the regulation he claims was violated, claimant submits, inter alia, his own affidavit and an affidavit from his expert Vincent A. Ettari, P.E. Claimant states in his affidavit that the lift basket he used on the date of the incident measured approximately 3' by 8' and was crowded with tools and supplies (claimant's affidavit, ¶ 4). He states that although the boom lift was "securely stationed on level ground", in order to enter and exit the basket "I had to have the front edge of the basket touching the roof. This caused the basket to be tilted forward on a slight angle" (claimant's affidavit, ¶ 5). Claimant states that the basket was not equipped with a surface on which he could secure the wood "so I had no alternative but to hold the wood in one hand (my left hand) while leaning the opposite edge of the wood on the railing of the basket while with my other hand I held and operated the power saw" (id. at ¶ 6). He was not permitted to drop materials to the ground and, therefore, allegedly positioned the wood so that the trim would fall inside the basket. With respect to the cause of the accident, claimant states the following in his affidavit:
"8. The wood being cut was heavy, as was the power saw. Had there been a surface on which I could secure the wood to make the cuts, then I believe my amputation would never have occurred.
9. To cut the wood on the floor of the basket was not an option because of the limited room within the basket and because of the floor being metal.
10. Also contributing to my unsafe working conditions was that we were under pressure to complete the job which had gone over schedule. This made carrying the wood to be cut down to the ground an unacceptable alternative because the boom lift moves very slowly" (claimant's affidavit, ¶¶ 8-10).
Claimant's expert, Mr. Ettari, opines in his affidavit the following:
"The fact of the matter is that the accident in question occurred because the Force of Gravity was working on both the saw and on the wood plank which was being cut while balancing on the railing of the boom lift. The accident was purely and totally Gravity related. This finding is undeniable and, therefore, I hold to a reasonable degree of engineering certainty that the forcing of the Claimant to work under such circumstances was a direct violation of the Labor Law. Had there been a saw horse or other suitable surface on which to work then this injury would not have occurred as the forces of gravity would have been obviated" (affidavit of Vincent A. Ettari, P.E., at ¶18).
Mr. Ettari further concluded that because the lift basket tilted forward it violated § 23-5.18 of the Industrial Code entitled "Manually-propelled mobile scaffolds" (12 NYCRR). As a result, claimant contends dismissal of his Labor Law §§ 240 (1) and 241 (6) causes of action should be denied.
In opposition to that branch of defendant's motion seeking dismissal of his common law negligence and Labor Law § 200 causes of action, claimant contends that the defendant's express contractual authority to exercise supervision and control over the contract work requires denial of this branch of defendant's motion. The portion of the contract relied upon by claimant states the following in Article 2 - Definitions:
"2.9 The term 'Director's Representative' means the employee or agent of the Design and Construction Group designated in writing by the Director as such. Under the general supervision of the Director, the Director's Representative shall have complete charge of the Work and shall exercise full supervision and direction of the Work" (claimant's Exhibit 4, ¶ 2.9; see also claimant's Exhibit 5, p.2 Initial Job Meeting Minutes, stating the Engineer-In-Charge "acting as the Director's Representative, shall exercise full supervision and direction of the Work").
Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors to "furnish or erect, or cause to be furnished or erected . . . 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 [construction workers employed on the premises]" (Labor Law § 240 [1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). To establish a violation of Labor Law § 240 (1) the claimant must "show that the statute was violated and that the violation proximately caused his injury" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). In Rocovich v Consolidated Edison Co. (78 NY2d 509, 514 [1991]) the Court of Appeals addressed, for the first time, the nature of the occupational hazards which Labor Law § 240 (1) was intended to protect against. The Court determined that the types of safety devices enumerated in the statute "[a]ll entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (id. at 514). As a result, the Court made clear that:
"The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (id.).
Analyzing the scope of the of the protections afforded by the statute accordingly, the Court held that plaintiff's fall into a 12-inch trough of hot oil did not entail the type of elevation-related risk which the statute was intended to prevent.
In Ross v Curtis-Palmer Hydro-Elec. Co. (supra) the plaintiff, a welder, sustained a back injury from being required to work in a contorted position on a scaffold. He alleged a violation of Labor Law § 240 (1) based on the contention that his injury could have been avoided had he been provided a ladder. Relying on Rocovich, the Court made clear that the protections afforded by the statute do not extend to accidents in which the force of gravity plays but a minor a role:
"The 'special hazards' to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the '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 . . . 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. The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist" (id. at 501).
The Court in Ross concluded that notwithstanding plaintiff's contention that the scaffold was improperly placed so as to require him to work in a strained position, the plaintiff's injuries were unrelated to the hazard which necessitated the use of the scaffold in the first place. Inasmuch as the scaffold was adequate to shield the plaintiff from harm directly flowing from the force of gravity to an object or person, plaintiff's Labor Law § 240 (1) claim was dismissed.
Subsequent to Rocovich and Ross, the principle that not all work place hazards connected in some way to the effects of gravity are afforded the special protections afforded by Labor Law § 240 (1) was reaffirmed by the Court of Appeals in Melber v 6333 Main Street (91 NY2d 759 [1998] [carpenter was injured while wearing 42-inch stilts when he tripped over electrical conduit protruding from the floor]); Nieves v Five Boro A.C. & Refrig. Corp. (93 NY2d 914 [1999] [laborer tripped on concealed object while stepping from bottom rung of ladder]); Cohen v Memorial Sloan-Kettering Cancer Ctr., (11 NY3d 823 [2008], reversing 50 AD3d 227 [2008] [first rung of A-frame ladder was completely blocked and inaccessible due to pipes protruding from wall, allegedly causing plaintiff's fall]) and Gasques v State of New York (15 NY3d 869 [2010] [worker's hand was crushed between a scaffold and the leg of the bridge he was painting]). In all these cases, the Court of Appeals concluded that the protective equipment envisioned by the statute was not designed to avert the hazard encountered by the various plaintiffs. In other words, the accidents were caused by hazards unrelated to the risk which brought about the need for the safety devices in the first place. The Court again made clear in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]) that the dispositive inquiry is not whether the injury resulted from a fall of a worker or object, but "whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner at 603).
Here, as in Rocovich, Ross, Melber, Nieves, Cohen and Gasques, claimant's accident was caused by a hazard which was unrelated to the risks which brought about the need for the boom lift in the first place. Simply stated, claimant's injury was not the "direct consequence" of a failure to provide adequate protection against a physically significant elevation differential (Runner at 603; see also Coleman v Crumb Rubber Mfrs., 92 AD3d 1128 [2012]; Davis v Wyeth Pharms., Inc., 86 AD3d 907 [2011]; Sereno v Hong Kong Chinese Rest., 79 AD3d 1414 [2010]; Auchampaugh v Syracuse Univ., 57 AD3d 1291 [2008]; Kelleher v Power Auth. of State of N.Y., 211 AD2d 918 [1995]). Rather, both claimant and his expert attribute the direct cause of the accident to a failure to provide a "saw horse or other suitable surface on which to work" (affidavit of Vincent A. Ettari, p. 6, ¶ 18; claimant's affidavit, ¶¶ 6,8). Neither a saw horse nor any other device designed to enable claimant to operate a circular saw safely are devices of the kind enumerated in the statute to protect claimant against an elevation-related risk. Under these circumstances, defendant satisfied its burden of establishing that claimant's injury was not the result of a hazard for which Labor Law § 240 (1) affords protection.
Unlike Labor Law § 240 (1), Labor Law § 241(6) is not self-executing. In order to impose liability under the statute it must be shown that the claimant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or specification (see Ross v Curtis-Palmer Hydro-Electric Co., supra; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). In support of his Labor Law § 241 (6) cause of action the claimant seeks to supplement his bill of particulars to allege a violation of Industrial Code § 23-5.18 (g) (12 NYCRR), which provides as follows:
"Section 23-5.18 Manually-propelled mobile scaffolds . . .
(g) Scaffold footing. Whenever any such scaffold is in use and is occupied by any person, such scaffold shall rest upon a stable footing, the platform shall be level and the scaffold shall stand plumb. All casters or wheels shall be locked in position."
While this section may be sufficiently specific to support a Labor Law § 241 (6) cause of action, it quite clearly is inapplicable to the claimant's use of the aerial basket in this case. The regulation defines a "manually-propelled mobile scaffold" as "[a] portable rolling scaffold supported by casters" (12 NYCRR § 23-1.4 [b] [32]). An "aerial basket" is defined as "[a] vehicle-mounted, power-operated device with an articulating or telescoping work platform designed for use at elevated working positions" (12 NYCRR § 23-1.4 [b] [2]). Here, the description of the lift utilized by the claimant on the date of the accident fits the definition of an aerial basket, not a manually-propelled scaffold. In fact, the amended claim makes numerous references to the fact that claimant was injured while working from an "aerial basket". An aerial basket is not the functional equivalent of a manually-propelled mobile scaffold and its operation is governed by 12 NYCRR § 23-9.6, an entirely different subpart of the regulation. As a result, the Industrial Code section claimant relies upon cannot support his Labor Law § 241 (6) cause of action (cf. St. Louis v Town of N. Elba, 16 NY3d 411 [2011] [clamshell bucket attached to front-end loader was functional equivalent of power shovel or backhoe for purpose of applying Industrial Code provision]; Misicki v Caradonna, 12 NY3d 511 [2009] [defendant made no claim that Industrial Code provision regarding heavy equipment was not applicable to handheld electrical drill]). The regulation cited is simply inapplicable to the aerial basket utilized by the claimant on the day of his accident.
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., supra; 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 [2011]).
Here, claimant's accident was the result of the manner in which his work was performed rather than as a result of a dangerous condition on the premises (see Comes v New York State Elec. & Gas Corp. , supra; Lombardi v Stout, supra; cf. Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 41-42 [2012]; Coleman v Crumb Rubber Mfrs., supra; Harrington v Fernet, 92 AD3d 1070 [2012]; Weinberg v Alpine Improvements, LLC, 48 AD3d 915 [2008]; Jurgens v Whiteface Resort on Lake Placid, 293 AD2d 924 [2002]). As a result, to establish defendant's liability for negligence or a violation of Labor Law § 200 it must be established that the defendant "both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed" (Van Hoesen v Dolen, 94 AD3d 1264, 1265 [2012], lv denied 19 NY3d 809 [2012] [quotation marks and citations omitted]; see also Rought v Price Chopper Operating Co., Inc., 73 AD3d 1414 [2010]; Blysma v County of Saratoga, 296 AD2d 637 [2002]; Sainato v City of Albany, 285 AD2d 708 [2001]). The law is well-settled that "an owner or general contractor's retention of general supervisory control, presence at the worksite or authority to enforce general safety standards is insufficient to establish the necessary control" (Soshinsky v Cornell Univ., 268 AD2d 947, 947 [2000]). Rather, it must be demonstrated that the owner or contractor "controlled the very manner or methods by which plaintiff did his work or that it exercised direct supervision and control over plaintiff's work at the time of the accident" (Turner v Sano-Rubin Constr. Co., 6 AD3d 910, 912 [2004]). Such circumstances were not demonstrated here.
Claimant testified that he received no instruction from anyone other than his employer with regard to the manner in which his work was to be performed. The thrust of his testimony was that a representative from the State would inspect the work for compliance with the contract specifications and created a "punch list" of the work that remained to be completed. Other than that, claimant testified that he could recall no instances in which the State had a "say" in the work (defendant's Exhibit H, claimant's EBT Tr. at 41). Moreover, Mr. Rabideau, the State's Field Inspector on the jobsite, testified that his responsibilities were limited to inspecting the work "to make sure that the State got what they paid for" (defendant's Exhibit I, p. 15). According to Mr. Rabideau, if a life-threatening condition was observed, it would be brought to the attention of the site superintendent. However, he testified that "the site safety would have been under Best Roofing themselves; they have their own safety plan and management" (defendant's Exhibit I, EBT Tr. pp. 17-18). Defendant established, therefore, that it exercised no actual supervision or control over claimant's work.
In opposition to defendant's motion seeking dismissal of claimant's Labor Law § 200 cause of action, claimant contends that the mere retention of the right to supervise the claimant's work at the jobsite is a sufficient basis upon which to predicate Labor Law § 200 liability (citing Ortega v Puccia, 57 AD3d 54, 64 n 2 [2008]). In support of this contention, claimant submits the General Conditions of the contract which, as defense counsel points out, are neither certified nor otherwise authenticated by anyone with knowledge of the facts (see generally Bergstrom v McChesney, 92 AD3d 1125 [2012]; NYCTL 1998-2 Trust v Santiago, 30 AD3d 572 [2006]) and claimant has proffered no excuse for his failure to submit the document in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Moreover, the submitted excerpt on which claimant relies merely defines the term "Director's Representative", stating, in pertinent part:
"The term 'Director's Representative' means the employee or agent of the Design and Construction Group designated in writing by the Director as such. Under the general supervision of the Director, the Director's Representative shall have complete charge of the Work and shall exercise full supervision and direction of the Work" (claimant's Exhibit 4, Article 2, ¶ 2.9)."
Putting aside the procedural deficiencies in claimant's proof, the Court cannot conclude, based on this definition alone, that defendant retained the requisite authority to supervise the means and manner of claimant's work so as to permit the imposition of liability under either the common law or Labor Law § 200. As discussed in detail below, the Appellate Division, Third Department, has not adopted the view espoused by the Appellate Division, Second Department, in Ortega v Puccia (supra) that the mere retention of the right to supervise a claimant's work may give rise to liability under Labor Law § 200. Even if it did, however, the contract language claimant relies upon is insufficiently specific to establish the requisite degree of supervision and control necessary for application of Labor Law § 200. In the Second Department, " '[a] defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed' " (Allan v DHL Express (USA), Inc., 99 AD3d 828, 832 [2012], quoting Ortega v Puccia, 57 AD3d at 62). The contract excerpt granting the Director's Representative "complete charge of the work" and authority to supervise and direct the work does not, standing alone, establish that defendant bears responsibility for the manner in which the work is performed. Furthermore, as set forth previously, "[t]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence" (Allan, at 832 [citation omitted]). In this Court's view, the portion of the contract relied upon by claimant fails to establish that defendant bore responsibility for the manner in which the work was performed and the undisputed evidence indicates otherwise.
Moreover, the Appellate Division, Third Department, has not adopted the rule initially set forth by the court in Ortega v Puccia (supra) that the mere retention of the right to supervise or control the manner in which the work is performed provides a sufficient basis on which to predicate Labor Law § 200 liability. Rather, the Appellate Division, Third Department, has stated repeatedly that absent proof that the owner or general contractor " 'exerted any actual control or supervision over [claimant] or the manner in which [his] work was performed' " liability under Labor Law § 200 may not be imposed (Gunderman v Sure Connect Cable Installation, Inc., 101 AD3d 1214, 1218 [2012] [emphasis added], quoting Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1276 [2009]; see also Corsino v New York City Tr. Auth., 9 NY3d 978, 979 [2007] [triable questions of fact existed whether the owner and contractor defendants "exercised the requisite supervisory or safety control" over the injury-producing work so as to preclude summary dismissal of the claim [emphasis added]). The uncontradicted proof here indicates the defendant exercised only general supervisory control of the worksite thereby warranting summary dismissal of claimant's common law negligence and Labor Law § 200 causes of action.
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's cross motion is denied.
January 18, 2013
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated October 17, 2012;
2. Affirmation of Douglas R. Kemp affirmed October 17, 2012 with exhibits;
3. Memorandum of Law of Douglas R. Kemp dated October 17, 2012;
4. Affirmation of Charles N. Rock dated November 15, 2012 with exhibits;
5. Affidavit of Adam Skrzypczak sworn to November 14, 2012;
6. Affidavit of Vincent A. Ettari, P.E. sworn to November 19, 2012 with exhibits;
7. Notice of cross-motion dated November 16, 2012;
8. Affirmation of Charles N. Rock dated November 16, 2012 with exhibits;
9. Affirmation of Douglas R. Kemp affirmed November 27, 2012.