| Atkinson v State of New York |
| 2008 NY Slip Op 02059 [49 AD3d 988] |
| March 13, 2008 |
| Appellate Division, Third Department |
| Tim Atkinson, Appellant, v State of New York, Respondent.(Claim No. 101679.) |
—[*1] Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam (Joseph D. Giannetti of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Court of Claims (Schweitzer, J.), entered February23, 2007, upon a decision of the court following a bifurcated trial in favor of defendant on theissue of liability.
Claimant was injured while working as a laborer erecting a scaffold to be used to buildexterior walls of a prison facility complex in the Town of Malone, Franklin County. As weexplained previously in this action, "claimant—standing on the ground—wasraising, one at a time, scaffold frame pieces which would ultimately comprise the next tier of thescaffold" (20 AD3d 739, 739 [2005]). After hanging several frame sections of the next tier,claimant turned to walk to an adjacent supply area when he saw one of the framepieces—which he had hung minutes before—fall; he reached out to catch it and itfell on him, causing arm and shoulder injuries. On a prior appeal, we affirmed an award by theCourt of Claims (Hard, J.) of summary judgment to defendant dismissing claimant's Labor Law§ 240 (1) cause of action (id.). On claimant's only other cause ofaction—under Labor Law § 241 (6)—the Court of Claims denied defendant'smotion for summary judgment, concluding that the regulation upon which this claim is premised,12 NYCRR 23-5.1 (h), is a specific command which could support a section 241 (6) claim (12Misc 3d 582, 584 [2006]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350[1998]). That order was not appealed and is not before us.
At the bifurcated trial on liability under Labor Law § 241 (6), the Court of Claims(Schweitzer, J.) properly declined—on law of the case grounds—to revisit the priororder interpreting the regulation as a specific command and we likewise decline to address thatissue, on which we take no position. The court, however, dismissed the claim in a lengthy,well-reasoned written decision. After considering all of the proof, the Court of Claims found, asrelevant here, that defendant had not violated the regulation and, even if it had, the violation wasnot a proximate cause of the accident. Claimant now appeals, arguing that he established a LaborLaw § 241 (6) violation in that defendant failed to satisfy the requirement that "[e]veryscaffold shall be erected and removed under the supervision of a designated person" (12 NYCRR23-5.1 [h]).
"In reviewing a decision following a nonjury trial, this Court may independently review theevidence presented and grant judgment as warranted by the record, giving due deference to thetrial court's credibility determinations" (Feldin v Doty, 45 AD3d 1225, 1226 [2007] [citations omitted]; see Poli v Lema, 24 AD3d 981,983 [2005]). Upon our review of the record, we agree entirely with the court's analysis andconclusion that defendant did not violate the regulatory requirement, as the evidence establishedthat claimant's erection of the scaffolding was in fact supervised by his supervisor, James Clark,"a designated person" (12 NYCRR 23-5.1 [h]). Claimant acknowledged that Clark was hissupervisor, that Clark's designee had instructed him in how to build the scaffold by himself, andthat he had successfully used that method to construct 40 to 50 scaffold frame pieces a day in thefour weeks prior to the accident. Robert Farfaglia, the construction superintendent who oversawthe entire site, testified that Clark was the general supervisor for labor, including scaffolding, andthat, in addition, each of the large buildings under construction had its own designatedsupervisor. Clark testified that he was claimant's supervisor and inspected the scaffoldingperiodically throughout the day to ensure that it was built properly. In the absence of anyauthority or convincing argument to the contrary, the Court of Claims' determination—thatnotwithstanding the fact that a supervisor was not present at the moment of the accident, noviolation of the regulation occurred—is fully supported by the record.
In truth, claimant's arguments are primarily premised upon allegations regarding the safety ofhis working conditions, i.e., being required or allowed to erect upper levels of the scaffoldwithout the help of a coworker. The conflict in the expert testimony concerned whether and whensuch assistance should have been provided, which sounds in negligent supervision (seeLabor Law § 200; see also Lombardi v Stout, 80 NY2d 290, 295 [1992] [liabilityof owner for negligent manner of work being performed]), causes of action not asserted in hisclaim. Further, these allegations do not impact upon the regulation's circumscribed requirementthat his scaffold-erection work occur "under the supervision of a designated person" (12 NYCRR23-5.1 [h]).
Finally, we agree with the Court of Claims' alternate conclusion that even if noncompliancewith the regulation was established, the proof did not demonstrate that the violation caused theaccident. This is so because claimant's supervisor testified that he would not have assigned asecond laborer, and no industry standard requiring one was shown; thus, even had claimant's"designated" supervisor been present and watching during the entire scaffold construction, it isspeculative that a second worker would have been present and would have prevented theaccident.
Claimant's remaining contentions are not persuasive.
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.