Opinion
# 2013-031-099 Claim No. 116793 Motion No. M-83213
01-27-2014
JOSETTE MARCELLO v. THE STATE OF NEW YORK
Claimant's attorney: CELLINO & BARNES, P.C. BY: RICHARD P. AMICO, ESQ. Defendant's attorney: LAW OFFICES OF LAURIE G. OGDEN, ESQ. BY: GARY J. O'DONNELL, ESQ.
Synopsis
In action based upon alleged violations of the Labor Law, Defendant demonstrated that liability does not lie under Labor Law § 200 because Defendant did not control or supervise Claimant's work. Further, while 12 NYCRR 29-9.5 (g) is sufficiently specific to serve as a basis for liability under Labor Law § 241 (6), liability for a violation of that section must be based upon specific statutory standard. Claimant has failed to demonstrate that Defendant violated a specific statutory standard that would support a cause of action pursuant to Labor Law § 241 (6). Defendant's motion for summary judgment is granted.
Case information
UID: 2013-031-099 Claimant(s): JOSETTE MARCELLO Claimant short name: MARCELLO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116793 Motion number(s): M-83213 Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK CELLINO & BARNES, P.C. Claimant's attorney: BY: RICHARD P. AMICO, ESQ. LAW OFFICES OF LAURIE G. OGDEN, ESQ. Defendant's attorney: BY: GARY J. O'DONNELL, ESQ. Third-party defendant's attorney: Signature date: January 27, 2014 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers, numbered 1 to 12, were read on motion by Defendant for summary judgment and dismissal of the claim:
1) Defendant's Notice of Motion, filed March 20, 2013;
2) Affirmation of Gary J. O'Donnell, Esq., dated March 19, 2013, with exhibits;
3) Affidavit of Gregory Beach, sworn to February 14, 2013, with exhibit;
4) Affidavit of Douglas D. Miller, sworn to February 28, 2013, with exhibit;
5) Affidavit of Scott Knapp, sworn to February 25, 2013;
6) Affidavit of Susan K. Zampella, sworn to March 1, 2013;
7) Defendant's Memorandum of Law, dated March 19, 2013;
8) Affirmation of Richard P. Amico, Esq., dated October 9, 2013, with exhibits;
9) Affidavit of John P. Coniglio, sworn to September 16, 2013, with exhibit;
10) Reply Affirmation of Gary J. O'Donnell, Esq., dated October 16, 2013 ;
11) Supplemental Affidavit of Douglas D. Miller, sworn to October 15, 2013;
12) Filed Documents: Claim and Verified Answer.
This is Defendant's motion seeking summary judgment and dismissal of the action. In her claim, filed on April 30, 2009, Claimant, Josette Marcello, alleges a workplace injury that occurred at a highway construction project on the Portland Avenue off-ramp of State Route 104 in the Town of Irondequoit. Specifically, Claimant was working for DiFiore Construction Co., a contractor hired by Defendant. On July 26, 2007, she was directed to prepare a pile of debris to be picked up by a backhoe. Apparently, the backhoe operator, not aware that Claimant was working near this pile of debris, placed the backhoe in reverse and backed into the Claimant. Ms. Marcello alleges that some part of the backhoe hit her in the head (she was wearing a hard hat), knocked her down, and then the tire of the backhoe ran over her left leg. The claim alleges violations of Labor Law §§ 200 and 241 (6).
In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959], appeal dismissed 11 AD2d 660 [1960]). "Bald, conclusory assertions" (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]) and the "shadowy semblance of an issue" cannot, by themselves, defeat a motion for summary judgment (Di Sabato at 300).
In support of its motion, Defendant's application sets forth the basis for its entitlement to summary judgment under Labor Law § 200 (that it neither directed or controlled the work Claimant was performing at the time of her accident). Defendant then presents its argument that it is also entitled to summary judgment on Claimant's Labor Law § 241 (6) cause of action, asserting that none of the alleged Industrial Code violations will support a Section 241 (6) cause of action in this instance.
Claimant has offered no opposition to Defendant's evidence that, because Defendant exercised no supervisory control over the operation, summary judgment on the Labor Law § 200 cause of action is appropriate (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Further, as to most of the alleged industrial code violations [all but 12 NYCRR § 23-9.5 (g)], Claimant has failed to contradict Defendant's evidence demonstrating that these sections, as applied to the facts in this situation, fail to support a Labor Law § 241 (6) cause of action. In opposition to Defendant's motion, Claimant disputes only the application of 12 NYCRR § 23-9.5 (g).
Accordingly, the only questions left to be determined are whether or not there has been a violation of 12 NYCRR § 23-9.5 (g), and whether or not that alleged violation will support a cause of action under Labor Law § 241 (6). Defendant argues that, in every measurable concrete way, the backup alarm in place on the backhoe was in compliance with the regulation. Claimant argues, however, that compliance with industry standards aside, the inability of Claimant and a non-party witness to hear the alarm, clearly demonstrates a question of fact as to whether Defendant or its agents violated that portion of the regulation requiring the alarm to be "audible to all persons in the vicinity."
Labor Law § 241 (6) imposes a nondelegable duty upon owners, contractors, and their agents to "provide reasonable and adequate protection and safety to construction workers" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). With regard to Claimant's Labor Law § 241 (6) cause of action, there is no dispute that the construction work she was performing at the time of her accident falls under the protections of the statute. To establish a prima facie case under Section 241 (6), Claimant must demonstrate a violation of a specific concrete provision of the Industrial Code (Ross at 505). The regulation allegedly violated must "set [ ] forth a specific standard of conduct and not simply a recitation of common-law safety principles" (Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 957 [2d Dept 2013]).
As stated above, the only section left in issue is 12 NYCRR 23-9.5 (g), which provides as follows:
Backing. Every mobile power-operated excavation machine except for crawler mounted equipment shall be provided with an approved warning device 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.Defendant argues that the State and its agents complied with this regulation, and that, to the extent that it can be found that it did not, compliance with the statute is not feasible. In this regard, Defendant demonstrated that: 1) the backhoe in question was equipped with a backup alarm; 2) the alarm was working at the time of the accident; 3) the loudness of the alarm is set by the manufacturer and cannot be adjusted in the field; and 4) the alarm met all industrial standards in place at the time.
Despite Defendant's demonstration that the alarm was properly functioning at the time of the accident, Claimant argues that Defendant violated that last sentence of the regulation, which requires that "[s]uch warning signal shall be audible to all persons in the vicinity of the machine above the general noise level in the area." Claimant has submitted evidence tending to show that Claimant and a non-party witness sitting in her car approximately 50 feet from the accident site were both unable to hear the backup alarm over the noise of traffic and other construction machinery at the time of the accident. Claimant argues that this evidence raises a question of fact as to whether there was a violation of the regulation.
I find that 12 NYCRR 23-9.5 (g) is specific enough for liability pursuant to Labor Law § 241 (6) to apply upon a violation of its specific standards. Those specific standards, however, have been met or exceeded by Defendant and its agents. The backhoe had a functioning backup alarm that met industry standards at the time of the accident. I find that the last sentence of 12 NYCRR 23-9.5 (g) does not contain a specific, concrete standard with which an owner or contractor can feasibly comply. Where the industrial code regulation relied upon invokes " '[g]eneral descriptive terms' " defined with general safety standards rather than "concrete specifications," the plaintiff cannot benefit from the reduced burden of proof applicable to causes of action under Labor Law § 241 (6) (Ross at 505).
Here, the testimony of Claimant and a non-party witness that they did not hear the backhoe's backup alarm at the time of the accident is analogous to that of the plaintiff in Cahill v Triborough Bridge & Tunnel Auth. (31 AD3d 347 [1st Dept 2006]). In Cahill, the Appellate Division, First Department, determined that testimony that the work area where Claimant fell was "dark" and the lighting was poor were "insufficient to create an inference that the amount of lighting fell below the specific statutory standard" (Cahill at 349; see also Carty v Port Auth. of N.Y. & N.J., 32 AD3d 732 [1st Dept 2006]).
Based upon the foregoing, it is hereby
ORDERED, that Defendant's motion for summary judgment is GRANTED and the claim is hereby dismissed in its entirety.
January 27, 2014
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims