Matter of Lockwood v State of New York

[*1] Matter of Lockwood v State of New York 2005 NY Slip Op 50807(U) Decided on April 1, 2005 Court Of Claims Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2005
Court of Claims

In the Matter of the Claim of Gilbert E. Lockwood, Claimant,

against

THE State of New York, Defendant.



99067



For Claimant:

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C.

BY:Harry J. Forrest, Esq., of counsel

For Defendant:

HON. ELIOT SPITZER, ATTORNEY GENERAL

BY:Burke, Scolamiero, Mortati & Hurd, LLP

Terese Burke Wolff, Esq., of counsel

Ferris D. Lebous, J.

The State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212 dismissing claimant's sole remaining cause of action based on Labor Law 241 (6). Claimant opposes the motion.[FN1]

A brief history of prior motion practice in this matter will help place the current issues into context. On October 2, 1998, claimant filed a motion seeking permission to file a late claim pursuant to CCA 10 (6). On that same date, claimant also filed a claim which was designated as Claim No. 99067. Claimant's application for late filing was denied by the Hon. Jerome F. Hanifin. (Lockwood v State of New York, Ct Cl, dated March 22, 1999, Hanifin, J., Claim No. None, Motion No. M-58333). Thereafter, upon appeal, the Third Department reversed Judge Hanifin's Decision, thereby permitting claimant to file a late claim. (Matter of Lockwood v State of New York, 267 AD2d 832). On January 24, 2000, claimant filed the permitted claim with the Clerk of the Court which was designated as Claim No. 101827. Claim No. 101827 is identical to [*2]the previously filed Claim No. 99067. Subsequent conferences, discovery orders and motions have been captioned under Claim No. 101827, but include the identical matter, Claim No. 99067, as well.

After discovery, claimant filed a Note of Issue with the Clerk of the Court on January 2, 2004. Then, on April 21, 2004, the State filed its first motion for summary judgment seeking dismissal of claimant's Labor Law 200 and 240 (1) causes of action in relation to Claim No. 101827. The State's first motion for summary judgment did not include claimant's Labor Law 241 (6) cause of action at that time based upon a self-described defense strategy. This court dismissed claimant's Labor Law 200 and 240 (1) causes of action.[FN2] (Lockwood v State of New York, Ct Cl, June 15, 2004, Lebous, J., Claim No. 101827, Motion No. M-68350 [UID No. 2004-019-548]).[FN3]

On January 19, 2005, the court held a conference with counsel with respect to the remaining Labor Law 241 (6) cause of action at which time it was agreed that the State would make the instant summary judgment motion prior to the scheduling of a trial date on the same.

Turning now to the factual allegations underlying this claim, the court will recite its own prior description of this claim: [t]his claim arose on October 2, 1996, at approximately 3:30 p.m., at a State bridge rehabilitation project on Route 17 near the Towns of Colchester and Cooks Falls, Delaware County, New York (hereinafter "Project"). At the time of this incident claimant was an employee of Lancaster Development (hereinafter "Lancaster"), the general contractor for said Project. As part of said Project, claimant was responsible for chipping away old concrete from a bridge using a jackhammer. In order to complete this task, claimant and a co-worker, Kevin Sandell, had personally erected a scaffold standing approximately 30 feet high and placed it on cobble rocks. (State's Exhibit E, pp 27-28). Also, apparently two of the scaffold's feet were placed in the creek bed (State's Exhibit E, pp 27-28), despite the installation of concrete slabs on which to place the scaffold. (State's Exhibit F, p 73). Further, claimant described wedging flat rocks under the scaffold's feet in order to stabilize the scaffold. (State's Exhibit E, pp 37-38). Nevertheless, claimant stated during his deposition that ultimately the movement of the scaffold was nothing out of the ordinary. (State's Exhibit E, pp 40-41). The [*3]scaffold had a safety railing around the perimeter of the top level. This accident occurred "[w]hen the jackhammer that [claimant] was using fell from the scaffold where he was working. As claimant attempted to prevent the jackhammer from falling by grabbing its air hose, he injured his neck, shoulder, arm and back." (Matter of Lockwood v State of New York, 267 AD2d 832, 832; see also Claimant's Affidavit, ¶ 4). It is undisputed that claimant did not fall from the scaffolding or fall onto the scaffold itself.[FN4]

(Lockwood v State of New York, Ct Cl, June 15, 2004, Lebous, J., Claim No. 101827, Motion No. M-68350 [UID No. 2004-019-548]).

The State's sole basis for dismissal of claimant's Labor Law 241 (6) cause of action is claimant's failure to cite any provision of the Industrial Code until responding to the instant motion.

DISCUSSION

Labor Law 241 (6) mandates owners and contractors provide workers reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502, 505; Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349-350). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). This duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site. (Long v Forest-Fehlhaber, 55 NY2d 154, 159). Additionally, a claimant must establish that the violation of the specific safety regulation was a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959).

The court will first address the State's argument that summary judgment is warranted based upon claimant's failure to identify any Industrial Code provisions throughout the course of the last six years while this matter has been pending through discovery, motion practice and appeals. The State argues that it would be prejudiced by allowing consideration of claimant's late identification of Industrial Code provisions, because additional discovery would be required to identify the type of scaffold at issue. It is undisputed that claimant failed to set forth specific provisions of the [*4]Industrial Code in either of his claims or Bill of Particulars.[FN5] Rather, it was only in opposition to the State's current motion when claimant finally came forward to identify the Industrial Code provisions on which he intends to rely upon at trial.

The court finds claimant's delay in identifying Industrial Code provisions does not warrant summary judgment in the State's favor in and of itself. In fact, the Third Department has stated that although it does "[n]ot condone this dilatory practice", as long as the "belatedly cited regulation" sets forth a specific safety rule that is applicable to the case at hand, then such is sufficient to support a Labor Law 241 (6) cause of action. (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902; Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, lv denied 92 NY2d 804; Smith v Hovnanian Co., 218 AD2d 68 [note of issue already filed, but no showing of the type of prejudice preventing late amendment]; McGuire v Independent Cement Corp., 255 AD2d 646 [defendant could not assert prejudice or surprise because further discovery permitted]). Stated another way, the late identification of Industrial Code provisions should only be a basis for dismissal when the merits so warrant, namely when the cited provisions are merely general safety standards regulations or, if specific, do not apply to the facts of the case under review.[FN6] (Narrow v Crane-Hogan Structural Sys., 202 AD2d 841, 842).

As such, the court finds the proper course is to determine whether each of the cited provisions belatedly cited by claimant are specific safety rules and, if so, whether each is applicable to the facts of this case. Claimant has cited four Industrial Code provisions, namely 23-5.1 (b), 23-5.3 (g) (1), 23-5.3 (h) (1), and 23-5.6 (a). The court will review each provision in seriatim.

A.Industrial Code 12 NYCRR 23-5.1 (b)

Industrial Code 12 NYCRR 23-5.1 (b) states as follows: Scaffold footing or anchorage. The footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction. Unstable supports, such as barrels, boxes, loose brick or loose stone, shall not be used.

(Emphasis added). [*5]

Claimant cites O'Connor v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513, a Second Department case, as authority that 12 NYCRR 23-5.1 (b) is a specific provision sufficient to maintain a Labor Law 241 (6) cause of action. However, the court's own research has found that the remaining departments, most importantly the Third Department which governs here, have found the opposite. More specifically, in reviewing another subpart of 23-5.1, namely subpart (f), the Third Department stated "[t]he regulation plaintiffs rely on, 12 NYCRR 23-5.1 (f), does not meet [the specificity] standard as it is a subpart of the general provisions for all scaffolds and, as such, lacks any degree of specificity." (Moutray v Baron, 244 AD2d 618, 619, lv denied 91 NY2d 808; emphasis added). The First and Fourth Departments have cited Moutray in deeming 12 NYCRR 23-5.1 and all its subparts as general provisions as well. (Schiulaz v Arnell Constr. Corp., 261 AD2d 247, 248 [First Dept.]; Fisher v WNY Bus Parts, Inc., 12 AD3d 1138, 1140 [Fourth Dept]). Consequently, in accordance with the foregoing and the Third Department's determination in Moutray, this court finds that 12 NYCRR 23-5.1 (b) is a general safety standard that does not provide a basis for liability under Labor Law 241 (6). As such, defendant's motion to dismiss relative to 12 NYCRR 23-5.1 (b) will be granted.

B.Industrial Code 12 NYCRR 23-5.3 (g) (1)

Industrial Code 12 NYCRR 23-5.3 (g) (1) states as follows: Footings. (1) Footings for metal scaffolds shall be sound, rigid and capable of supporting the maximum design loads of such scaffolds without settlement or deformation. Such footings shall be secure against movement in any direction and shall have sufficient area to properly transfer the vertical post or end frame loads of the scaffolds to the ground, grade or equivalent surface without causing any unsafe condition.

(Emphasis added).

Claimant merely quotes the text of this provision, but does not cite any authority discussing whether this provision is a specific or general safety standard. (Claimant's Memorandum of Law, p 4). The court's own research has uncovered two cases in which 12 NYCRR 23-5.3 is discussed, although both cases address 23-5.3 (f), not subpart 23-5.3 (g) (1) as cited here. (Sopha v Combustion Eng'g., 261 AD2d 911, 912 [23-5.3 (f) is found specific]; Bender v TBT Operating Corp., 186 Misc 2d 394, 403 [23-5.3 (f) is found specific]). At issue here, however, is 12 NYCRR 23-5.3 (g) (1). This court is struck by the nearly identical language in 12 NYCRR 23-5.3 (g) (1) as compared to 12 NYCRR 23-5.1 (b) discussed above and found by the Third Department in Moutray to be a general provision. By way of example, the content of the specific subparts are strikingly similar. Both 23-5.1 (b) and 23-5.3 (g) (1) state that footings "[s]hall be sound, rigid and capable of supporting the [*6]maximum [design] load[s]..." and "[s]hall be secure against movement in any direction...."[FN7]

In this court's view, in consideration of the Third Department's determination in Moutray and the strikingly similar language between the two subparts, this court finds that 12 NYCRR 23-5.3 (g) (1) is a general safety standard that does not provide a basis for liability under Labor Law 241 (6). As such, the State's motion for summary judgment dismissing claimant's Labor Law 241 (6) cause of action based on 12 NYCRR 23-5.3 (g) (1) will be granted.

C.Industrial Code 12 NYCRR 23-5.3 (h) (1) and 12 NYCRR 23-5.6 (a)

The two remaining provisions cited by claimant are Industrial Code 12 NYCRR 23-5.3 (h) (1) and Industrial Code 12 NYCRR 23-5.6 (a).

Industrial Code 12 NYCRR 23-5.3 (h) (1) states that "[e]very metal scaffold shall be securely tied into the building or other structure at intervals not to exceed 30 feet horizontally and 26 feet vertically."

Industrial Code 12 NYCRR 23-5.6 (a) states: Poles. The foot end of any pole used in a pole scaffold shall rest on firm footing and shall be secured against lateral movement by nailing, the use of cleats or by any other effective means. Where wood poles are spliced, the ends shall be square and the upper sections shall rest squarely on the lower sections. Wood splicing pieces shall be provided on at least two adjacent sides and shall be not less than three feet in length. They shall overlap the abutting ends by an equal distance and shall have a combined cross-sectional area of not less than 50 percent of the cross-sectional area of the pole.

Neither party cites any authority discussing whether these provisions are specific or general safety standards. Nor has the court's own research uncovered any such authority. The court will presume for purposes of this discussion that both these provisions are sufficiently specific to state a Labor Law 241 (6) cause of action.

With respect to the applicability of these respective provisions to this case, the State argues that it cannot tell if these provisions are applicable because it does not know whether a metal or pole scaffold was involved in this accident. More specifically, the State argues "[w]e can not even tell if the newly alleged violations are relevant and applicable because more fact gathering and review is absolutely necessary. For example, we don't even know how the scaffold at issue would be classified under the alleged Industrial Code violations which clearly make distinctions between different scaffold models and types." (State's Reply Memorandum of Law, p 5). Claimant does not [*7]address this issue.

It is the State's burden as the moving party on this motion, to prove that these Industrial Code provisions are inapplicable to the facts of this case. (Sainato v City of Albany, 285 AD2d 708, 710; Bockmier v Niagara Recycling, 265 AD2d 897). Although the court finds it somewhat perplexing that after six years of litigation there is no discovery identifying the type of scaffold at issue here, suffice it to say, from this record the court cannot ascertain with any certainty whether the scaffold at issue is a metal scaffold (12 NYCRR 23-5.3 [h] [1]) or a pole scaffold (12 NYCRR 23-5.6 [a]).[FN8] Consequently, the State's motion for summary judgment relative to Labor Law 241 (6) based upon 12 NYCRR 23-5.3 (h) (1) and 12 NYCRR 23-5.6 (a) is denied. The court will, however, reopen discovery on the limited issues raised by 12 NYCRR 23-5.3 (h) (1) and 12 NYCRR 23-5.6 (a) including the identification of the type of scaffold on which claimant was working at the time of this accident. The court will contact counsel for the purpose of arranging a conference to discuss a schedule for the completion of outstanding discovery.

Accordingly, for the reasons stated above, it is ORDERED that the State's Motion to Dismiss, Motion No. M-69723, is granted in part and denied in part in accordance with the foregoing.

The court has considered the following papers in connection with this motion:

1.Claim No. 99067, filed October 2, 1998.

2.Memorandum-Decision and Order, Hanifin, J., Claim No. None, Motion No. M-58333, filed March 31, 1999.

3.Memorandum and Order, Supreme Court, Appellate Division Third Department, entered December 23, 1999.

4.Claim No. 101827, filed January 24, 2000.

5.Decision and Order, Lebous, J., Claim No. 101827, Motion No. M-68350, filed June 25, 2004.

6.Notice of Motion No. M-69723, dated February 9, 2005, and filed February 10, 2005.

7.Affidavit of Terese Burke Wolff, Esq., in support of motion, sworn to February 9, 2005, with attached exhibits.

8.Memorandum of Law in support of motion, undated.

9.Affirmation of Harry J. Forrest, Esq., in opposition to motion, dated February 25, 2005, and filed February 28, 2005.

10.Claimant's Memorandum of Law in Opposition to "Respondent's" Motion to Dismiss, dated February 25, 2005.

11.Reply Affidavit in Support of Motion for Summary Judgment, of Terese Burke Wolff, Esq., sworn to March 22, 2005, and filed March 24, 2005, with attached exhibit.

12.Reply Memorandum of Law, in support of motion, undated. Footnotes

Footnote 1: Claimant's opposing papers were filed after the return date of February 23, 2005 due to an apparent oversight in claimant's office. Over the objection of defense counsel, the court advised both parties, in writing, that it found no prejudice in accepting claimant's late submission and adjourned the motion to March 23, 2005 to allow the State additional time to submit reply papers. (CPLR 2214 [c]; 22 NYCRR 206.9 [b]).

Footnote 2: Although the motion was addressed to Claim No. 101827, for the same reasons set forth in said Decision and Order, claimant's Labor Law 200 and 240 (1) are dismissed as well in relation to Claim No. 99067.

Footnote 3: Selected unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm

Footnote 4: Citations within the quoted material are to the exhibits annexed to defendant's prior motion for summary judgment.

Footnote 5: There is no reference to any Industrial Code provision in either Claim No. 99067 or Claim No. 101827. The only Bill of Particulars served was in connection with Claim No. 101827.

Footnote 6: The court finds the cases cited by the State distinguishable. For instance, in Reilly v Newireen Assoc., 303 AD2d 214, lv denied 100 NY2d 508, the plaintiff's request to amend her bill of particulars was denied based upon plaintiff's failure to comply with the court's order to identify Industrial Code provisions within a specific time period.

Footnote 7: 12 NYCRR 23-5.3 (g) (1) contains the word "design" while 12 NYCRR 23-5.1 (b) does not.

Footnote 8: That having been said, claimant refers to the scaffold in his deposition as "round steel scaffolding" and "steel pipe." (State's Exhibit E, pp 28 & 32). Claimant's co-worker refers to the scaffold as metal railing with pins. (State's Exhibit G, pp 22-23).