Opinion
# 2014-018-505 Claim No. 119736 Motion No. M-84294
02-27-2014
STEVEN CIERI v. STATE OF NEW YORK
Claimant's attorney: No Appearance Defendant's attorney: RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, LLC By: Matthew A. Lenhard, Esquire
Synopsis
Neither the contractual documents for this project nor Claimant's testimony reflects any supervisory control by the State, authorized or exercised. Defendant has met its burden to establish that the State may not be held liable under Labor Law section 200 or the common law. Those causes of action must be dismissed. Defendant has not established, as a matter of law, that the reshoring poles were properly braced or tied together or that Claimant failed to install the reshoring poles as he was directed. Defendant's motion is granted in part and denied in part.
Case information
UID: 2014-018-505 Claimant(s): STEVEN CIERI Claimant short name: CIERI Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119736 Motion number(s): M-84294 Cross-motion number(s): Judge: DIANE L. FITZPATRICK Claimant's attorney: No Appearance RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, Defendant's attorney: LLC By: Matthew A. Lenhard, Esquire Third-party defendant's attorney: Signature date: February 27, 2014 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion for summary judgment. The Claimant is pro se and no opposition has been received.
Before proceeding to Defendant's motion, some history of the case is warranted. Claimant was represented by counsel at the time the claim was filed on April 18, 2011. On January 31, 2013, this Court granted Claimant's former counsel's Order to Show Cause, relieving him and his firm from further representation of Claimant. The Court gave Claimant 120 days from January 31, 2013, to find new counsel or advise the Court, in writing, that he would be proceeding pro se. Thereafter, the Court had a telephone conference with Claimant and counsel for Defendant, and gave Claimant an additional 90 days to find an attorney, or until September 17, 2013. Since that time, no attorney has filed an notice of appearance on behalf of Claimant, and Claimant is currently incarcerated in Pennsylvania. Defendant served Claimant with a copy of this motion by mail at his last known address and at the last known correctional facility where he was being held, Bradford County Correctional Facility, 15927 Route 6, Troy, Pennsylvania, 16947.
The claim was brought by permission to file a late claim. The claim seeks damages for injuries Claimant sustained when, as an employee with The Pike Company, Inc., he was assisting in the construction of a parking garage at the New York State College of Human Ecology at Cornell University in Ithaca, New York. Claimant was injured around 10:45 a.m., on October 22, 2008, when a reshoring pole he and another worker had installed fell and struck him on the head and back. Claimant alleges Defendant violated New York Labor Law sections 200, 240 (1) and 241 (6) and the Industrial Code of the Rules of the Board of Standards and Appeals in the Department of Labor.
Cieri v State of New York, UID No. 2010-018-154 (Ct Cl, J. Fitzpatrick, Motion No. M-78333, Dec. 17, 2010).
Defendant served a verified answer to the claim on May 17, 2011. Claimant filed and served a Verified Bill of Particulars. Defendant served Claimant, pro se, with a Notice to Produce in August 2013, to which Claimant has not responded. According to Defendant's counsel, Claimant contacted him and acknowledged receiving the discovery demand, and advised that he was currently incarcerated.
Defendant's Exhibit G.
Defendant now makes several arguments for dismissal of the claim. The Court will address each argument individually.
First, Defendant argues that the State is not a proper party to this action because the contractor with whom Claimant was employed was not retained by the State but by a public benefit corporation, the State University Construction Fund (SUCF). The contract for the construction of the garage was solely between SUCF and The Pike Company, Inc. Defendant argues that SUCF is a separate entity from the State and, accordingly, the State is not a proper party to this proceeding.
See Defendant's Exhibit B.
The Labor Law imposes the duty to provide a safe work place, not only upon contractors but also upon the owners of property (see Labor Law §§ 240 (1); 241 (6), and Lombardi v Stout, 80 NY2d 290, 294-295 [1992]; Rusin v Jackson Hgts. Shopping Ctr., 27 NY2d 103 [1970]). Although the State may not have entered into the contract with Pike Company, Inc., to construct the parking garage, Defendant has not met its burden on a summary judgment motion to show the State did not have an ownership interest in the property. As a result, the Court cannot find, as a matter of law, that the State is not a proper party to this action.
Defendant also asserts that Claimant has failed to prosecute this action in a timely and diligent manner and the claim should be dismissed pursuant to CPLR 3216. CPLR 3216 (a) provides that: [w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms." Dismissal under the statute is only permitted, however, where three conditions precedent have been met: issue has been joined, the action has been pending for one year since the joinder of issue, and a written demand has been served upon the party against whom the relief is sought, by registered or certified mail, requiring that party to resume prosecution of the action and serve and file a note of issue within ninety days of receipt. Although Claimant has not diligently pursued this action, and the first two conditions precedent have been met, Defendant has not established that a demand for Claimant to file a note of issue was served upon him by registered or certified mail. The statute precludes dismissal where all three conditions have not been met.
Defendant also argues that Claimant's Labor Law section 200 claim and common law negligence claim are without merit and must be dismissed. Defendant argues that to hold a landowner liable under section 200 of the Labor Law where the allegations involve the methods of work, there must be a showing that the landowner supervised or controlled the manner or method of work.
Labor Law section 200 is a codification of the common law general duty to provide workers with a safe work environment (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Where "a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation." (Ross, 81 NY2dat 505). "[T]he duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work." (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]; Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).General supervisory authority to oversee and inspect the work product to assure compliance with the contract, and to correct unsafe practices alone, is not sufficient to sustain a Labor Law section 200 cause of action (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Fassett v Wegmans Food Mkts. Inc., 66 AD3d 1274 [3d Dept 2009]; Fisher v WNY Bus Parts, Inc., 12 AD3d 1138 [4th Dept 2004]).
Defendant relies upon Claimant's deposition testimony to support its position that he was an employee of The Pike Company, Inc., and only received instructions and direction for his work from employees of The Pike Company, Inc. Defendant has established that the State was not a party to the contract to build this garage which was between The Pike Company, Inc., and the SUCF. That contract provides that an architect or engineer named in the "Notice to Bidders" or such other person or firm designated by the SUCF will provide general administration of the contract and inspection of the work. The contract specifies that the consultant will not be responsible for "construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, and it will not be responsible for the Contractor's failure to carry out the work in accordance with the Contract Documents." That consultant shall have the authority to stop the work as necessary to insure proper execution of the contract. The contact further provides that it is the contractor who is responsible for hiring competent employees, and if the consultant deems any of the contractor's employees incompetent, careless, insubordinate or otherwise objectionable, it must advise the contractor who must then fire the employee. The consultant's authority is general oversight and supervision, and there is no indication that any State employee was authorized to supervise or control the work site.
Defendant's Exhibit B, Article II, Section 2.01 (1), page A-3.
Claimant's deposition testimony establishes that his work assignment came from his supervisors with The Pike Company, Inc. Pike employees directed where he was to work and how the work would be performed including what type of nails and tools to use. The Pike Company, Inc., was also responsible for providing safety information to its employees, although, Claimant indicated safety meetings were illusive.
Neither the contractual documents for this project, nor Claimant's own testimony reflects any supervisory control by the State, authorized or exercised, on this project. Defendant has met its burden to establish that the State may not be held liable under Labor Law section 200 or the common law, and Claimant has failed to come forward with proof to raise a question of fact. The Labor Law section 200 and common law causes of action must be DISMISSED.
Defendant next argues that as a matter of law, Claimant will be unable to establish the State's liability under Labor Law section 240 (1) which is intended to protect workers from injuries arising from the application of the force of gravity upon the worker or an object as the result of the failure to provide an adequate safety device as enumerated in the statute (Rosado v Briarwoods Farm, Inc., 19 AD3d 396 [2d Dept 2005]). Defendant argues that Claimant asserts only that the reshoring poles were not properly braced in his Bill of Particulars. The lack of proper bracing is the only safety device Claimant identified as not being utilized in accordance with Labor Law section 240 (1). Defendant argues that the reshoring poles which fell on Claimant do not meet the circumstances specified for protection under the statute, because those poles were not "in the process of being hoisted or secured." (Labor Law § 240 [1]). Defendant also argues that the Court of Appeals in Misseritti v Mark IV Constr. Co., 86 NY2d 487 [1995], held that the braces referred to in Labor Law section 240 (1) are "those used to support elevated work sites" and not braces designed to "shore up or lend support to a structure."
Defendant's Affidavit ¶ 36.
The case law involving this statute has evolved over the years through volumes of reported cases. Yet, the Court of Appeals specifically noted in a more recent case, Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009], that "the single decisive question is 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." (Id. at 603). The fact that the poles which fell were not in the process of being hoisted or secured does not preclude this claim from Labor Law section 240 (1) protection (see Quattrocchi v F. J. Sciame Constr. Corp., 11 NY3d 757, 759 [2008]). "The dispositive inquiry. . . does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker." (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011]). Rather, the fall must be due to an elevation-related risk that the safety devices in the statute are designed to protect against (see Fabrizi v 1095 Avenue of the Americas, LLC, ___NY3d___, 2014 NY Slip Op 01206 [2014]; Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 35 [3d Dept 2012]).
A closer examination of the undisputed facts giving rise to Claimant's injuries is necessary. Claimant, in his undisputed deposition testimony, describes his job on the day he was injured as "reshoring" or supporting the building forms which would be used to hold the poured concrete for the parking ramp as part of the construction of the parking garage. Claimant indicated that forms are built on scaffolding, and his job was to use reshoirng poles every two feet to support the forms until the concrete was poured and hardened; thereafter, the forms and the reshoring poles would be removed. The poles were approximately "16-foot four-by-fours." The poles were being placed on a short "knee wall" on the outer edge of the ramp. Prior to this day, when Claimant was installing reshoring poles on an incline, he would drill a hole in the concrete and use wire nails to secure the reshoring pole at the bottom, or C-clamps when the pole was on a incline. At the top, Claimant used a "redhead" device which slides over the top of the four-by-four pole; it has a large screw-like top which can be moved up to increase the tension and hold the reshoring pole in place. On the day of the accident, Claimant was told not to drill holes into the concrete and not use wire nails, because they were going to pour the concrete that day or the next and then everything could be taken down. Claimant was told to cut the poles "square" and place a wedge at the bottom to hold the pole in place instead of a wire nail. Claimant was working with another employee that day, and that employee placed the redhead on the pole. Claimant placed the wedges at the bottom of the pole once it was in place. The tension from the redhead against the aluminum I-beam and wood form, and the wedge at the bottom is what was supposed to hold the pole in place. Claimant was facing away, but in front of a pole under which he was placing wedges, and as he tapped the wedge with his hammer, he heard his co-worker yell and then he was struck by the falling pole. He was hit in the back of the head and between the shoulder blades. Claimant testified during his deposition that he did not think that bracing the poles would have prevented the poles from falling, it would have only made all the poles fall together.
Claimant later refers to the posts being four feet apart (Exhibit F, page 78, lines 23-25).
Claimant refers to them as "16-foot" in one place, then "18-foot" (Exhibit F, p 76, lines 23-24) and "20-foot" later on (Exhibit F, page 79, lines 6-7). The discrepancy in the length of these poles, the Court does not find a decisive issue for purposes of this motion.
See Exhibit F, Pages 81-83.
Here, Claimant's injuries were caused by the fall of the pole he had installed to reshore the forms for the concrete. The pole that fell was standing upright, approximately 14 feet high from the floor where Claimant was standing. Each pole weighed approximately 70 lbs.
His injuries were not caused by some tangential object falling, but the very object he had installed to hold the forms for the concrete. The 14-foot height of the top of the pole was a significant height differential when it fell and struck Claimant (compare Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10 [standing metal pipes fell four feet]; Kropp v Town of Shandaken, 91 AD3d 1087 [3d Dept 2012][1,500-pound pipe fell one foot]; Pritchard v Tully Constr. Co., Inc., 82 AD3d 730, 730-731 [2d Dept 2011] [300-pound motor fell three feet]). Yet, the critical question is whether Claimant's injuries were the result of a failure to provide one of the safety devices enumerated in the statute to give proper protection from the falling reshoring pole. Defendant argues that Claimant only asserts in his Bill of Particulars that the reshoring poles were not properly braced. Bracing, as Defendant notes, as referred to in the statute are "those used to support elevated work sites," not braces designed to shore up or support a structure (see Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490-491 [1995]). Yet, a closer look at Claimant's Bill of Particulars reflects that in (4) (e), he asserts that Defendant was negligent in "failing and omitting to ensure that all poles were properly constructed, anchored and secured so as to ensure proper protection and safety to the claimant to perform his tasks." Although Claimant did not specify which safety devices were needed to secure the poles, other than his later reference to "braces," Claimant is not moving for summary judgment. Defendant has failed to establish that none of the safety devices in the statute were necessary or would have provided the protection contemplated under the statute. Defendant has submitted nothing other than counsel's affidavit and Claimant's deposition and Bill of Particulars. The Court cannot, as a matter of law find, based upon these submissions, that it was not the absence or inadequacy of a safety device that caused the reshoring pole to fall upon Claimant.
Defendant's Exhibit G, page 2, 4 (e).
Defendant next argues that Claimant is unable to support his Labor Law section 241 (6) claim. To make out a prima facie cause of action for a violation of Labor Law section 241 (6), Claimant must set forth a violation of a specific safety regulation of the New York State Industrial Code (see generally Morris v Pavarini Constr., 9 NY3d 47, 50 [2007]). In Claimant's Bill of Particulars he points to the violation of two sections of the New York State Industrial Code, sections 23-1.5 (a) and 23-2.2.
Section 23-1.5 of the New York State Industrial Code, defines the general responsibility of employers. This section, however, does not set forth a sufficiently specific standard of conduct to support a violation of Labor Law section 241 (6) (Gasques v State of New York, 15 NY3d 869 [2010]).
Section 23-2.2 of the New York State Industrial Code sets forth the requirements for concrete work, and includes specific requirements for inspection, beams, floors and roofs, stripping and reshoring. Defendant argues, relying upon Morris, 9 NY3d 47, that portions of this section of the New York State Industrial Code have been found to be too general to be a basis to impose liability under Labor Law section 241 (6). However, Morris found only that the interpretation of this regulation presented a question of law that required the court to hear evidence before reaching its determination as to whether the regulation can be applied to anything other than completed forms. The Appellate Division decision reviewing the case after the trial court heard evidence on the issue, found that the provision could be applied to forms being constructed and this could support a Labor Law section 241 (6) violation (Morris v Pavarini Constr., 98 AD3d 841 [1st Dept 2012] affd ___NY3d___, 2014 NY Slip Op 01210 [2014]). Here, however, the issue is not the forms but the reshoring poles. Defendant has not established, as a matter of law, that the reshoring poles were properly braced or tied together, or that Claimant failed to install the reshoring poles as he was directed to do so.
Accordingly, Defendant's motion is GRANTED in part, and DENIED in part as set forth herein.
February 27, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affidavit of Matthew A. Lenhard, Esquire, in support, sworn to November 11, 2013, with exhibits attached thereto.
3) No response was received from Claimant.