Jones v State of New York

Court of Claims

Decided on April 14, 2026

Claim No. 138592

Zainab A. Chaudhry, J.

Claimant Charles Jones commenced this action seeking damages for personal injuries sustained when he was struck by a vehicle while performing work for a subcontractor hired by defendant State of New York to complete a milling and paving project on a State-owned roadway. He now moves for partial summary judgment on the issue of liability with respect to his causes of action under Labor Law §§ 200 and 241 (6), and for common law negligence. Defendant opposes the motion. For the reasons stated below, claimant's motion is denied.

Summary judgment is a "drastic remedy" and may be granted only when no triable issues of fact exist (Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see CPLR 3212 [b]). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Trustees of Columbia Univ. in the City of NY v D'Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020]). In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of fact (see Ayotte v [*2]Gervasio, 81 NY2d 1062, 1063 [1993]). The failure to make the initial prima facie showing requires denial of the motion, "'regardless of the sufficiency of the opposing papers'" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [emphasis omitted], quoting Alvarez, 68 NY2d at 324). If the moving party satisfies the prima facie obligation, the burden shifts and the party opposing the motion must demonstrate, also by admissible evidence, the existence of an issue of material fact (see Vega, 18 NY3d at 503, citing Alvarez, 68 NY2d at 324).

In support of his motion for summary judgment, claimant submitted a copy of the pleadings, an affirmation by claimant's counsel, and the transcripts of the examinations before trial of claimant, Matthew Korycki, Carlos Andros, and Dina Colavito. Claimant also submitted a copy of the project contract and the affirmation and expert report of Richard M. Balgowan, P.E. The evidence proffered by claimant demonstrates that, on November 28, 2022, claimant was employed as a laborer by Morano Brothers Corporation, which had entered into a contract with defendant for the performance of work on a milling and paving project at Saw Mill River Road (Route 9A) in Yonkers (see Affirm in Supp, Exh D [Cl's EBT], at 25-26). Claimant and his work partner, Matthew Korycki, had been instructed to drill test holes in the roadway to determine the depth of the asphalt that needed to be milled (see Affirm in Supp, Exh E [Korycki EBT], at 12, 39). When work began, claimant was directing traffic as a flagger and Korykci was using the pneumatic drill, which was connected to a compressor truck parked in the southbound lane. Shortly before the accident, Korycki asked claimant to look at the drill because it had stopped working (see Cl's EBT, at 55-57, 60-62). Thus, Korycki assumed flagging duty while claimant examined the drill. Korycki testified at his deposition that he had certifications in traffic control and flagging at the time of the accident (see Korycki EBT, at 16). Further, Korycki testified that, while he was flagging, he was wearing an orange or yellow t-shirt with a high visibility vest and a white hard hat, and he had one orange flag with which to direct traffic (see id. at 17).

Immediately before the accident occurred, Korycki was positioned at the rear driver's side of the compressor truck controlling traffic in both the northbound and southbound lanes, while claimant stood holding the drill by the front driver's side near the double-yellow line. Korycki noticed a vehicle approaching in the southbound lane when it was about a quarter mile away (see id. at 19). As Korycki attempted to flag the vehicle, it crossed into the northbound lane, went around the truck, and struck claimant (see id. at 25, 45-47). Claimant testified that he did not see or hear the vehicle approaching before it struck him (see Cl's EBT, at 67). In addition, Korycki testified that there were streetlights in the area where he and claimant were working and that visibility was good (see id. at 19-20).

Labor Law §241 (6)

Labor Law § 241 (6) imposes "a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998] [emphasis omitted], quoting Labor Law § 241 [6]). In other words, the statute "imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite" (id. [emphasis omitted]). However, to recover under Labor Law § 241 (6), the claimant must establish that his injury was proximately caused by a violation of a specific regulation set forth in the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]; see also Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 800 [2d Dept [*3]2013]; Hebbard v United Health Servs. Hosps., Inc., 135 AD3d 1150, 1151 [3d Dept 2016]). This predicate regulation must be one which "mandate[s] compliance with concrete specifications" (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). Regulations which merely "declare general safety standards" or "reiterate common-law principles," on the other hand, cannot serve as the basis of a Labor Law § 241 (6) claim (id., citing Ross, 81 NY2d at 504-505).

In the present case, claimant's cause of action under Labor Law § 241 (6) is predicated upon the alleged violation of 12 NYCRR 23-1.29, the provision of the Industrial Code which relate to public vehicular traffic at or near locations in which construction, demolition or excavation work is being performed. Industrial Code 23-1.29 states:

(a) Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.

(b) Every designated person authorized to control public vehicular traffic shall be provided with a flag or paddle measuring not less than 18 inches in length and width. Such flag or paddle shall be colored fluorescent red or orange and shall be mounted on a suitable hand staff. Such designated person shall be stationed at a proper and reasonable distance from the work area and shall face approaching traffic. Such person shall be instructed to stop traffic, whenever necessary, by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated person shall lower the flag or paddle and signal with his free hand.

Claimant argues that he is entitled to summary judgment based upon Korycki's testimony that "there were no cones, barrels, barricades, or flashing lights set up behind the compressor truck to direct oncoming vehicle traffic away from [claimant's] work area" (Mem of Law in Supp of Mot, at 5). According to claimant, such testimony establishes a violation of 12 NYCRR 23-1.29 because it demonstrates that the work area was not "fenced or barricaded" as described under subdivision (a) of that regulation. This argument is unpersuasive, however, because the regulation provides two options for controlling traffic: it states that the road may be "fenced or barricaded" to direct traffic away from the work area, "or," that traffic may be controlled by "designated persons," i.e., flaggers (12 NYCRR 23-1.29 [a] [emphasis added]). To comply with the regulation, defendant needed to implement only one of those options (see Johnsen v State of New York, UID No. 2019-049-002 [Ct Cl, Jan. 25, 2019] [Weinstein, J.], affd 207 AD3d 530, 531 [2d Dept 2022]). And here, as defendant contends (see Mem of Law in Opp to Mot, at 9-10), claimant has not offered any proof—or even argued—that there were no designated persons controlling traffic at the worksite. To the contrary, the testimony submitted by claimant shows that Korycki was working as a flagger at the time of the accident, he was equipped with an orange flag as required under the regulation, he was trained and qualified to be a flagger, and he attempted to flag the vehicle that struck claimant (see Lucas v KD Dev. Constr. Corp., 300 AD2d 634, 635 [2d Dept 2002] [compliance with 12 NYCRR 23-1.29 established because plaintiff was instructed to act as "flagman" and was provided an appropriate fluorescent flag]; cf. Schoonover v Diaz, 222 AD3d 1244, 1246-1247 [3d Dept 2023] [violation of 12 NYCRR 23-1.29 established because, among other reasons, there was no evidence the plaintiff was trained or qualified to be a flagger]). Likewise, claimant's expert, Balgowan, acknowledges that a flagger was present. And [*4]although Balgowan states that "Flagger Ahead" signs should have been placed to warn approaching motorists about the flagging station (Balgowan Affirm, ¶ 21), he does not contend that such signs are required under 12 NYCRR 23-1.29 or any other provision of the Industrial Code. Having failed to establish a violation of the cited provision of the Industrial Code, claimant has not demonstrated prima facie entitlement to judgment as a matter of law under Labor Law § 241 (6) (see Medina v 1277 Holdings, LLC, 234 AD3d 839, 842 [2d Dept 2025]; cf. Bucci v City of New York, 223 AD3d 453, 455 [1st Dept 2024] [prima facie violation of 12 NYCRR 23-1.29 established where "there was no flag person or erected barricades to control traffic in the work area"]).

Because claimant has not established a prima facie case, the Court need not consider defendant's remaining arguments respecting this cause of action. Nevertheless, the Court is compelled to address two of them. First, to the extent defendant argues it is "not a proper Labor Law defendant" because it did not exercise supervision or control over the work area (Mem of Law in Opp, at 5), such contention lacks merit as to the Labor Law § 241 (6) claim. Indeed, section 241 (6) imposes "absolute" liability upon an owner or general contractor like defendant "for the negligence of a subcontractor, even in the absence of control or supervision of the worksite" (Rizzuto, 91 NY2d at 348-349 [emphasis omitted]). Second, defendant's argument that Labor Law § 241 (6) is limited to construction or excavation work performed on a "building" or "structure" is likewise without merit (Mem of Law in Opp, at 8). The Court of Appeals has broadly held that section 241 (6) is "not limited to building sites" and has specifically applied the statute to an accident that occurred during a "State highway repaving project" (Mosher v State of New York, 80 NY2d 286, 288, 289 [1992]; see also Ares v State of New York, 80 NY2d 959, 960 [1992]). Notably, defendant acknowledges that section 241 (6) "may apply to road construction projects" (Mem of Law in Opp, at 8), and its cursory attempt to limit Mosher to its facts is unavailing. Claimant was performing preliminary tasks "integral" to the roadway construction project at the time of the accident and, thus, such work falls "within the parameters of Labor Law § 241 (6)" (Torres v Springcreek Assoc., 295 AD2d 976, 977 [4th Dept 2002]; see De Jesus v Metro-North Commuter R.R., 159 AD3d 951, 953 [2d Dept 2018] [citing 12 NYCRR 23-1.4 (b) (13) and noting the provision "defines construction work expansively" (internal quotation marks omitted)]).

Labor Law § 200 & Common-Law Negligence

Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto, 91 NY2d at 352; Colon v Bet Torah, Inc., 66 AD3d 731, 732 [2d Dept 2009]). There are two broad categories of cases involving Labor Law § 200—those where workers are injured as a result of a dangerous or defective condition on the premises, and those where workers are injured as a result of the manner in which the work is performed (see Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008] [recognizing that the two categories are "viewed in the disjunctive"]). Where the injury results from a dangerous or defective condition, an owner may be liable if it created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition (see id.; see also Schoonover, 222 AD3d at 1248). Where the injuries arise out of alleged dangers or defects in the means and methods of the work, an owner may be held liable for a violation of Labor Law § 200 only if it had the authority to supervise or control the performance [*5]of the work (see Rizzuto, 91 NY2d at 352; Ortega, 57 AD3d at 61). An owner is deemed to have the authority to supervise or control the work for purposes of Labor Law § 200 when it "bears the responsibility for the manner in which the work is performed" (Ortega, 57 AD3d at 62). However, "[g]eneral supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200" (Kauffman v Turner Constr. Co., 195 AD3d 1003, 1006 [2d Dept 2021] [internal quotation marks omitted], lv denied 38 NY3d 908 [2022]; see Ortega, 57 AD3d at 62; Ricotta v Praxis Biologics, 265 AD2d 878, 878 [4th Dept 1999]).

In the present case, claimant's accident did not involve a dangerous or defective condition on defendant's premises. The accident involved the manner in which the work was performed. Accordingly, for defendant to be liable, defendant had to "bear[ ] the responsibility for the manner in which the work is performed" (Ortega, 57 AD3d at 62). Claimant here failed to offer proof in admissible form to show that defendant had such responsibility. Claimant's conclusory assertion that New York State Department of Transportation engineer-in-charge Dina Colavito had "complete supervisory authority" over the worksite is unsupported by the record (Affirm in Supp, ¶ 26; Balgowan Affirm, ¶ 16). This contention appears to be based solely on Colavito's deposition testimony that she had authority to stop work if she observed a safety violation. But as noted above, such authority is insufficient to establish liability under Labor Law § 200. Moreover, Colavito testified that the written traffic safety plan designed for the Saw Mill River Road project was prepared by Morano Brothers—not the State—and that no one from the State was supposed to be supervising the work at the place where the accident occurred (see Affirmation in Support, Exhibit H [Colavito EBT], NYSCEF Doc. No. 29, at 14-15, 20). She also testified that her role was to "oversee[ ] the contract," thus further suggesting she had mere general supervisory authority (id. at 10). Claimant has thus failed to meet his burden of establishing entitlement to a judgment as a matter of law with respect to the Labor Law § 200 and common-law negligence causes of action (see Ortega, 57 AD3d at 63).

Finally, the Court notes that, although claimant's memorandum of law states that he also seeks summary judgment dismissing any affirmative defenses relating to comparative negligence, he failed to request such relief in his notice of motion. Thus, such an application need not be entertained (see Caesar v Metropolitan Transp. Auth., 229 AD3d 601, 601-602 [2d Dept 2024]). In any event, claimant's argument in this regard is wholly conclusory and, notably, he does not cite to any evidence in the record to support it. Because claimant failed to eliminate all triable issues of fact as to whether he was comparatively at fault for the accident, including whether he failed to use available safety equipment, he has not established any prima facie entitlement to the dismissal of any such defense (see Kang Min Lee v Ke Ping Huang, 223 AD3d 790, 792 [2d Dept 2024]).

Accordingly, it is hereby

ORDERED that claimant's motion for partial summary judgment (M-102169) is DENIED in its entirety.

April 14, 2026

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

[*6]Papers Considered:

1. Claim, filed January 3, 2023;

2. Amended Answer, filed April 3, 2023;

3. Notice of Motion and Affirmation of George W. Ilchert, Esq. in Support of Motion, with Exhibits A through I, and accompanying Statement of Material Undisputed Facts and Memorandum of Law, filed May 1, 2025;

4. Affirmation of Daniel O'Neill, Esq., in Opposition to Motion, with Exhibits A through D, and accompanying Response to Claimant's Statement of Facts and Memorandum of Law, filed August 13, 2025; and

5. Affirmation of George W. Ilchert, Esq., in Reply, filed August 21, 2025.