Lacerra v State of New York

[*1] Lacerra v State of New York 2016 NY Slip Op 51291(U) Decided on September 4, 2016 Court Of Claims 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2016
Court of Claims

Joseph Lacerra, Claimant,

against

The State of New York and NEW YORK STATE THRUWAY AUTHORITY, Defendants.



123815



For Claimant:

Sacks & Sacks, LLP

By: David H. Mayer, Esq.

For Defendants:

Cartafalsa, Slattery, Turpin & Lenoff

By: Michael J. Lenoff, Esq.
Alan C. Marin, J.

Ironworker Joseph Lacerra was injured while working on a project for his employer, El Sol Enterprises, which had a contract with the State of New York to perform emergency steel repairs on certain bridges.[FN1] On January 2, 2014, at around 9 a.m., claimant was working underneath the Bronx River Parkway, with East Tremont Avenue below, when "a steel trough [*2]gave way and/or collapsed, falling on claimant . . ." (claimant's Affirmation in Support, exhibit 1, paragraph 9 of the bill of particulars).

Mr. Lacerra, who brought an action in this Court based upon sections 200, 240 (1) and 241 (6) of the Labor Law, now moves for summary judgment on the section 240 (1) cause of action, commonly referred to as the scaffold law.

There were no witnesses to the happening of the accident. Claimant in his deposition of April 2, 2015 testified that the ironworkers on the job generally worked in pairs, and his co-worker that day was Richard Schuler, who was working on the other side of a structural element called the "porkchop" - - the two were not visible to one another.

The narrative that follows is drawn from the Lacerra deposition. Claimant took a manlift to the work site below the elevated roadway, climbed out of the basket and tied himself off. He was working on his knees grinding paint; about three feet above him was a steel trough, which claimant described as a "big gutter . . . for rain runoff, [from] the highway above"

(claimant's Affirmation in Support, exhibit 3, page 26). When Mr. Lacerra finished grinding paint, he began chipping away with his hammer at rust that had built up.

The work area was enclosed, "filthy" (id., page 28) and dark, especially given the dust generated by the grinding. While he was grinding and chipping, Mr. Lacerra said he did not touch the steel trough above.

As claimant was chipping,[FN2] "A piece of steel came down on top of me" (id., page 31). It was a piece from the trough. Lacerra could not give its dimensions, but estimated the weight as: "At least a ton when it came down . . .The whole thing was filled up with dirt and debris" (id., page 32).

Additional background on what was being done in the subject area came from the daily report of DOT Inspector Frantz Paul for January 2, 2014: "Contractor was in the process of cleaning a local area floor beam FB6 for the purpose of installing a web repair plate when a segment of a trough came [down]." (claimant's Affirmation in Support, exhibit 6, page 27 of Paul's December 9, 2015 deposition).

In October, before the accident, Mr. Paul sent an email to his supervisor, the DOT engineer in charge, Pankaj Patel, in which he indicated that foreman Joe McDermott regarded the trough to be a hindrance for accessing the area; later on, the trough was "tampered with" (claimant's Affirmation in Support, exhibit 5). In his July 8, 2015 deposition, Mr. Patel was shown one photo with the notation, "Trough support removed by contractor, " and another that said, "Incident support removed by contractor in November [2013]" (claimant's Affirmation in Support, exhibit 2, page 53).

In considering falling-object cases that do not involve hoisting, instructive are Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011) and Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658 (2014).

The Wilinski court, by a four-to-three vote, reversed the First Department's grant of [*3]summary judgment to the defendant on section 240 (1), ruling that coverage under the section was for the trier of fact. In Fabrizi, Judge Pigott, who had written the dissent in Wilinski, wrote for the majority and disposed of the 240 (1) cause of action.

Defendants State of New York and New York State Thruway Authority oppose claimant's motion for summary judgment on section 240 (1); they do not directly seek here to have such cause of action dismissed.

In view of the foregoing, and having considered the submissions of the parties,[FN3] IT IS ORDERED that motion No. M-88510 is denied.

New York, New York

August 4, 2016

ALAN C. MARIN

Acting Judge of the Court of Claims Footnotes

Footnote 1:This was contract D262259 entered into with the State of New York Department of Transportation (DOT). See the deposition testimony of Pankaj Patel (claimant's Affirmation in Support, exhibit 2, pages 14 and 15).

Footnote 2:There is some interchanging of "grinding" and "chipping," but at one point Mr. Lacerra says that "you grind the paint, you chip out the rust" (claimant's Affirmation in Support, exhibit 3, page 30).

Footnote 3:The following were reviewed: From claimant - - a Notice of Motion for Summary Judgment, an Affirmation in Support of Plaintiff's Motion for Summary Judgment (with exhibits 1 through 9, and Claimant's Memorandum of Law); and a Reply Affirmation. From defendant - - an Affirmation in Opposition.