Pastoriza v. State
| Decision Date | 05 March 1984 |
| Docket Number | No. 67977,67977 |
| Citation | 123 Misc.2d 481,473 N.Y.S.2d 736 |
| Parties | Maria Teresa PASTORIZA, individually and as Administratrix of the Estate of Tomas Pastoriza, Deceased, Claimant, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
Blumenfeld & Fraiden, New York City, for claimant; Franklin Blumenfeld, New York City, of counsel.
Robert Abrams, Atty. Gen., for defendant; Leahey & Johnson, P.C., Asher Marcus, New York City, of counsel.
In the present motion the Claimant seeks Summary Judgment under Sections 240 and 241 of the Labor Law. The defendant cross-moves for an Order denying the Claimant's motion for summary judgment and granting the defendant's cross-motion for dismissal of the Claim pursuant to Sections 3211, (a) subdivision 7 and 3212 of the CPLR.
The incident giving rise to the instant Claim took place on May 13, 1982, when Mr. Pastoriza fell while working on the restoration of the Westside Highway, also known as the Henry Hudson Parkway. At the time, Mr. Pastoriza was a carpenter employed by the Yonkers Contracting Corp. The contracting corporation had entered into a contract with the State of New York on July 14, 1981, to reconstruct a portion of the Henry Hudson Parkway between St. Clair Place and West 144th Street. While acting in his capacity as a carpenter, Mr. Pastoriza fell from an open-sided deck. As a result of the injuries sustained in the fall, he died later that day, May 13, 1982. The Claimant alleges that at the time of the fall, Mr. Pastoriza was on the open-sided deck, approximately 40 feet above the ground and adjacent to a viaduct opening. The Claim also alleges that neither a safety line nor a belt had been issued to him. It is also alleged that no anchor outlets for lifelines were in place, no safety rails had been installed on the open-sided deck, and no safety net had been placed beneath the area from which he fell.
In opposing the Claimant's motion and in supporting its own motion, the defendant has set forth four arguments. The first argument is that since the instant highway project is federally funded, the State should not be subject to the Labor Law. Therefore, the contractor engaged by the State's Department of Transportation, should be solely responsible for the decedent's death. (Affirmation in Opposition, pp 2-3) Next, counsel for the defendant argues that a prior case, Nagy v. State of New York, 89 A.D.2d 199, 456 N.Y.S.2d 241, is controlling and requires that the present Claim be dismissed. (Affirmation in Opposition, pp 3-5) Counsel for the defendant also argues that the State's liability is governed solely by § 58 of the Highway Law. (Affirmation in Opposition, pp 5-8) Finally, it is argued that the Labor Law does not apply because the State does not determine: "... whether 'this' contractor or 'that' contractor does his work in a careful manner." (Affirmation in Opposition, p 10)
Defendant's first argument, namely, that the State is not subject to the Labor Law, because the project is federally funded, is clearly without merit. The very case cited by the Claimant in its second argument, Nagy v. State of New York, supra, indicated that the Claimant might have a viable cause of action under the Labor Law. 1 Therefore, it is apparent that in a federally funded project, the sections of the Labor Law have application.
The second argument of defendant's is that Nagy v. State of New York, supra, is controlling on the issue on whether or not the Labor Law applies. The Nagy case, also involved the Yonkers Contracting Corp., and one of its employees who was injured while engaged in, what the Court described as an "inherently dangerous activity" [89 A.D.2d 199, 200, 456 N.Y.S.2d 241]. The Appellate Division did not indicate that a claim under the Labor Law should be dismissed. On the contrary, the Court declined to grant the State's cross-motion to dismiss the Claim, because the Claimant alleged theories of recovery under sections of the Labor Law. Again, it is clear that the Labor Law has applicability to the matter presently before the Court.
In his third argument, counsel for the defendant raises the issue as to whether or not § 58 of the Highway Law governs the State's liability. Section 58 of the Highway Law states as follows:
... [t]he state shall not be liable for damages suffered by any person from defects (emphasis added), in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state under such system as the commissioner of transportation may adopt pursuant to section twelve, but the liability for such damages shall otherwise remain as now provided by law, notwithstanding the construction or improvement and maintenance of such highways by the state under this chapter.... (Highway Law, § 58)
A fair reading of the section indicates that it relates only to defects in the State's highways which gives rise to damages. The Claimant does not indicate in the present Claim that the injuries were suffered as a result of a defect in the State highway, but rather, from a breach of duties prescribed by the Labor Law. All of the cases cited by the defendant in support of its position are clearly distinguishable. Lopes v. Rostad, 45 N.Y.2d 617, 412 N.Y.S.2d 127, 384 N.E.2d 673 was predicated upon a duty created by Sections 102 and 139 of the Highway Law. It did not attempt to determine whether or not various sections of the Labor Law applied. Ramos v. State of New York, 34 A.D.2d 1056, 312 N.Y.S.2d 185, dealt with an earlier section of § 240 of the Labor Law and is not applicable to the law as presently amended. The same is true of Curtis v. State of New York, 27 A.D.2d 628, 275 N.Y.S.2d 992. Similarly, Olson v. 480 Park Avenue Corp., 12 A.D.2d 960, 211 N.Y.S.2d 100, dealt with an interpretation of § 241 of the Labor Law as it existed in 1958. Hawkins v. Oneida County, 297 N.Y. 393, 79 N.E.2d 458 dealt with an interpretation under § 6 of the County Law, prior to the 1969 amendment of sections 240 and 241 of the Labor Law.
It should also be noted that the instant Claim involves a rehabilitation of the highway. Section 58 as written, contemplates a highway which has been completed. As counsel for the defendant argued in his brief in Nagy, supra, the Claimant sustained his injuries in a construction project; (Exhibit "3", annexed to the Affirmation in Support of the Motion for Summary Judgment) The very same situation exists in the present Claim, the Claimant was injured on a construction project, and not by means of a defect in the highway. Accordingly, the Court finds that § 58 of the Highway Law does not apply.
Finally, the attorney for the defendant argues that the State should not be held liable because its decision on hiring a contractor is based upon the lowest bid and that it therefore has no control over the...
To continue reading
Request your trial
-
Pastoriza v. State
...provided evidence of a violation of Labor Law § 240 and that such violation was a proximate cause of decedent's injuries. 123 Misc.2d 481, 473 N.Y.S.2d 736. This was A party moving for summary judgment is obligated to prove through admissible evidence that she is entitled to judgment as a m......