Gulino v New York State Thruway Auth.

[*1] Gulino v New York State Thruway Auth. 2006 NY Slip Op 52163(U) [13 Misc 3d 1238(A)] Decided on November 1, 2006 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 1, 2006
Ct Cl

George Gulino and Celia Gulino, Claimants,

against

New York State Thruway Authority, Defendant.



108877



APPEARANCES:For Claimants:

Sacks & Sacks, LLP

by: Retu Singla, Esq.

For Defendant:

Fiedelman Garfinkel & Lesman

by: David Persky, Esq.

Alan C. Marin, J.

George Gulino, an employee of United Fence, was part of a crew installing several hundred feet of new guardrail on Interstate 95 in Bronx County. United Fence was a subcontractor of Liddell Brothers, Inc. which had entered into a contract with the Thruway Authority. On January 7, 2004, when climbing down from a flatbed truck, Mr. Gulino stepped on a piece of concrete, fell to the ground and injured himself. Gulino's claim [FN1] here is based upon sections 200, 240 and 241.6 of the Labor Law.

The defendant New York State Thruway Authority has moved this Court for an Order dismissing each of the three causes of action; claimant opposes the motion, except with respect to the cause of action under §240 (known as the scaffold law), which on the record clearly cannot survive (see Vargas v State of New York, 273 AD2d 460, 710 NYS2d 609 (2d Dept 2000)).

The Deposition of the Authority's Engineer

The record includes the depositions of claimant and Timothy Shaw, a civil engineer with the Thruway Authority (def affirm support, exhs D & E). According to Mr. Shaw, in January of 2004, the Thruway Authority had a contract for the installation of cameras, flashing message signs and transit equipment at about 30 different locations in Ulster, Orange, Rockland, Westchester and Bronx counties, including the site on I-95 in the Bronx near the Westchester [*2]County line.[FN2] This type of electrical work necessarily involved moving guardrails. In addition to the aforementioned Liddell Brothers, Inc. as the general contractor, the Authority hired Edwards and Kelcey as consulting engineers for the project.

Shaw testified in his deposition that he had once visited the location at issue here - - Mile Post 3.2 on I-95 - - when United Fence was installing the guardrails, but was unable to provide a specific date. Putting up guardrails was the only work being performed when Shaw visited the site, which he recalled took place on the median and the right shoulder. The engineer did not recall seeing a buildup of debris or concrete pieces.

Shaw indicated that any road patchwork done at Mile Post 3.2 would be the responsibility of the Authority's maintenance unit, which he was not a part of. He did not know if the maintenance unit was ever at the site to do patchwork. The subject contract with Liddell Brothers did not include road surface repair.

Shaw testified that Liddell Brothers was responsible for safety on the worksite. He knew of no regulations as to the manner in which debris was to be cleaned up, but more generally, that any site was to be kept in a "workman like manner," which he maintained was the responsibility of the Authority's consulting engineers.

The Deposition of Claimant

Drawn from claimant's deposition, the narrative in this section is not contradicted elsewhere in the record. As of January 7, 2004, Gulino, an experienced ironworker, had worked for United Fencing for about 6 months on a number of other jobs. The one on which he was assigned that day required moving a stretch of a guardrail five to seven feet; the guardrail was "a couple of hundred" feet long.

The only workers on site at the time were about seven employees of United Fencing. Claimant was working in the median with Chris Gentile. Starting just before 8 a.m., the two men were unloading a flatbed truck of its guardrail cargo - - 60 posts and 30 metal sheets that were one foot by twelve feet. The truck would be moved slowly as the men unloaded it to minimize having to carry the 100-pound sheets of guardrail. The remaining United Fence employees had other tasks, such as digging fence post holes; one of the employees was driving the flatbed pay-loader.

No work was being performed on the road itself, which was open to vehicular traffic. Standing on the ground, Gulino and Gentile unloaded the truck in about four hours. Next they were directed to pick up the old guardrail and load that onto the truck - - some ten guardrails and miscellaneous piping. Their supervisor, Tom Hardt, then instructed Gulino alone to secure the old guardrails on the bed of the truck.

Claimant testified that before getting onto the truck, he spent a minute or so moving some of the debris out of the way by hand in a "small area, maybe three foot . . . Because I had to get off the truck." As for the condition of the 30-to-40 foot wide median, there was debris scattered all over it: "It was construction debris, like they just broke up the road and had to get it off the road . . . It came from the road being broken up." [*3]

Gulino finished the task with the old guardrails and prepared to dismount from the truck, finding a spot "where I came up [and] went over to it, sat down on the trailer." He had looked down and saw "debris, construction debris . . . [l]arge concrete." He then "pushed off to get to the ground. . . When I got off, when I went to land on the ground, I fell with my left foot [landing] on top of a piece of concrete [that was] maybe six inches, eight inches." Claimant had been aiming for a clear spot, "but I missed."

***

Section 200 of the Labor Law codifies the common-law duty to maintain a safe workplace. Ordinarily, the inquiry under §200 entails whether a defendant exercised control or supervision over the job site. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352, 670 NYS2d 816, 821 (1998). But given Mr. Shaw's testimony that the maintenance unit of the Thruway Authority bears responsibility for road surface patching and repair, whether defendant created, knew or should have known of the unsafe condition is a factual issue unresolved by the record as we have it, and defendant's motion to dismiss this cause of action cannot succeed. Singh v Young Manor, Inc. 23 AD3d 249, 804 NYS2d 65 (1st Dept 2005); Murphy v Columbia University, 4 AD3d 200, 773 NYS2d 10 (1st Dept 2004).

Section §241.6 of the Labor Law creates a non-delegable duty on the part of the owner of a construction site (Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978)) to provide "reasonable and adequate protection and safety" for workers.[FN3] Section 241.6 is implicated only when based upon a specific safety standard established by regulation of the State Commissioner of Labor. Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 601 NYS2d 49 (1993).

Claimant points to several provisions of Rule 23 [FN4] promulgated by the Commissioner, namely: §23-1.7 (e) entitled "Tripping and other hazards" and §23-2.1 (a) & (b) covering, respectively, "Storage of material or equipment" and "Disposal of debris." The storage of material and equipment to be used in construction does not comprehend the facts here. As for the disposal-of-debris regulation, it does not set forth a specific standard of conduct and thus cannot serve as a predicate for a violation of §241.6. Quinlan v City of New York, 293 AD2d 262, 739 NYS2d 706 (1st Dept 2002).

Subdivision (e) of §23-1.7, which encompasses tripping and other hazards, is further broken down into two paragraphs. Paragraph (1) covers passageways; claimant did not have his accident in a passageway. What is at issue here is paragraph (2), which reads as follows:

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

Paragraph (2) is specific enough to serve as a basis for finding a §241.6 violation. But, an action grounded on paragraph (2) will not be viable if the debris was "created by him and his [*4]coworkers, which was an integral part of the work being performed. . . ." Salinas v Barney Skanska Construction Co., 2 AD3d 619, 622, 769 NYS2d 559, 562 (2d Dept 2003) (citations omitted). Here, the debris did not arise from the subcontract Gulino was working on; nor is there any indication that it came from the general contract with Liddell Brothers. Claimant's theory is that such debris was a result of road patching, which Shaw testified was the responsibility of the defendant's maintenance unit.

On its face, the language, "floors, platforms and similar areas" suggests work within an existing structure or one under construction. The First Department implied such in Canning v Barney's New York, 289 AD2d 32, 734 NYS2d 116 (2001). It let a cause of action under paragraph (2) of §23-1.7(e) go forward for Mr. Canning who fell while carrying some electrical supplies on a building under construction. The court noted that, ". . . at the time of the accident, the concrete floors of the subject building had been poured and . . . the surface on which plaintiff fell was a floor' contained within the outer wall of the structure." 289 AD2d at 34, 734 NYS2d at 119. The appellate court elaborated:

The decisions of this Court that deny recovery where an employee falls in a location other than a passageway are confined to those cases which do not involve "floors, platforms and similar areas where persons . . . pass" within the contemplation of paragraph (2) (O'Gara v Humphreys & Harding, 282 AD2d 209 [muddy ground in open area]; Muscarella v Herbert Constr. Co., 265 AD2d 264 [open area next to trailer]; Dacchille v Metropolitan Life Ins. Co., 262 AD2d 149 [storage area]; Jennings v Lefcon Partnership, 250 AD2d 388, 389, lv denied 92 NY2d 819 [open area between two high-rises].

289 AD2d at 35, 734 NYS2d at 120.

It is not clear that the above cases necessarily represent a bright line rule on the physical scope of paragraph (2). There are cases that suggest otherwise; see the Second Department's Laboda v VJV Development Corp., 296 AD2d 441, 745 NYS2d 67 (2d Dept 2002), which upheld a judgment for a worker who tripped over bricks in an enclosed courtyard (not quite the open spaces of a highway). At a minimum, whether the place where Gulino fell was a working area within the meaning of paragraph (2) is a question of fact, which was the First Department's ruling in Smith v Hines GS Properties, Inc., 29 AD3d 433, 815 NYS2d 82 (1st Dept 2006) regarding an open area between a building under construction and the materials storage area.

***

In view of the foregoing, having reviewed the parties' submissions [FN5], IT IS ORDERED that defendant's motion no. M-71671 be denied, except that the portion of the motion which seeks dismissal of the cause of action based upon Labor Law §240 be granted. [*5]

New York, New York

November 1, 2006

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1: Inasmuch as Celia Gulino's claim is derivative of that of her husband's, references herein to "claimant" and to "Gulino" will mean George Gulino, unless the context requires otherwise.

Footnote 2: The contract was denominated TANY 03-191, D213244 (cl affirm opposition, exh 3).

Footnote 3: Defendant's contention that it was not construction work that was being performed has no support in the record.

Footnote 4: 12 NYCRR §23.

Footnote 5: Defendant submitted an Amended Notice of Motion together with an Affirmation in Support, appending exhibits A through F and an Affirmation in Reply with exhibit G. Claimants submitted an Affirmation in Opposition to Defendant's Motion for Summary Judgment, appending exhibits 1 through 3.