DARCY v. STATE (2021)

This claim alleges that claimant was injured when he fell on a snow covered entrance ramp at Shawangunk Correctional Facility (CF) on March 8, 2018, while he was working for a contractor at that facility. Claimant now moves for partial summary judgment on the issue of liability pursuant to Labor Law §§ 200 and 241 (6). In support of his motion for partial summary judgment, claimant submits a copy of the pleadings, transcripts of his examination before trial (EBT) testimony, the EBT transcripts of Shawangunk CF employees, numerous Department of Corrections and Community Supervision (DOCCS) records — including the accident/injury investigation report for claimant's accident, memoranda prepared by a corrections sergeant concerning the accident, Shawangunk CF's snow and ice removal plan, and the Shawangunk CF Watch Commander logbook for the period of January 26 through March 8, 2018 — and photographs of the accident scene. Claimant also submits an affidavit of meteorological experts. Defendant opposes the motion, which will be granted in part, for the reasons that follow.

The claim alleges that at 7:30 a.m. on March 8, 2018, claimant, an employee of Hudson Valley Contracting, which had been retained by defendant to perform work at Shawangunk CF, injured his left knee when he slipped and fell on an icy entrance ramp at Shawangunk CF (see Roberts Affirmation, Exhibit 1 [Claim No. 131319, ¶¶ 3, 5]). The claim alleges that defendant was negligent in failing to properly construct, place, operate, and maintain the ramp, and in failing to remove snow, ice, and other slipping hazards from the ramp or take appropriate measures to prevent slipping on the entrance ramp, and that defendant violated, as pertinent to this motion, Labor Law §§ 200 and 241 (6) and Industrial Code § 23-1.7 (see id. at ¶ 3).

DOCCS Lieutenant Lawrence Malloy testified at his EBT that he was the Watch Commander on duty at Shawangunk CF from 6:00 a.m. to 2:00 p.m. on March 7, 2018, that it was snowing when he began his shift (see id., Exhibit 15 [Malloy EBT, pp. 37-38], Exhibit 16 [Watch Commander's Logbook, pg. 487]), and that he did not recall assigning maintenance personnel to perform snow removal (see id., Exhibit 15 [Malloy EBT, pg. 39]). A Watch Commander logbook entry at 2:00 p.m. on March 7, 2018, describes the weather as “snow” (id., Exhibit 16 [Watch Commander's Logbook, pg. 489]). Lt. Malloy testified that he was the Watch Commander on duty from 9:45 p.m. on March 7, 2018, to 6:00 a.m. on March 8, 2018, and that “it was 30 degrees and cloudy” when he started his shift (id., Exhibit 15 [Malloy EBT, pg. 35]; see id., Exhibit 16 [Watch Commander Logbook, pg. 490]).

In March 2018, Hudson Valley Electric had been retained as a subcontractor to perform electrical work related to the replacement of the heating system at Shawangunk CF (see id., Exhibit 5 [Flood EBT, pp. 9-11], Exhibit 6 [DeGraff EBT, pp. 9-10], Exhibit 8 [Agreement, dated May 5, 2015], Exhibit 19 [Alric Affidavit, sworn to Feb. 17, 2021]). Claimant testified at his EBT that he was employed as an electrician with Hudson Valley Electric on the Shawangunk CF heating project for approximately one week prior to March 8, 2018 (see id., Exhibit 4 [Darcy EBT, pp. 21, 24]). Claimant testified that it was not snowing when he drove to Shawangunk CF on the morning of March 8, 2018, but that it had snowed the night before (see id. at pg. 23), and that he was wearing treaded work boots, which were new, in good condition, and had a standard rubber sole (see id. at pp. 32-33). Claimant testified that he typically arrived at Shawangunk CF at 7:00 a.m., at the same time as Sean Thomas, who was his foreman and his only co-worker on that project (see id. at pp. 20-22, 78). Correction Officer (CO) Jeffrey DeGraff ¹ testified at his EBT that when he arrived at Shawangunk CF at 6:15 a.m. on March 8, 2018, “[w]e had just had a pretty major snowstorm,” which had started “[s]ometime throughout the night” and stopped between 6:00 and 6:30 a.m. on March 8, 2018 (id., Exhibit 6 [DeGraff EBT, pg. 48]). CO DeGraff testified that claimant arrived at the job site between 6:35 and 6:40 a.m., and that Thomas arrived shortly thereafter (see id. at pg. 49).

Claimant testified that when he arrived at Shawangunk CF, he first reported to the “guard shanty” to have his tools counted, and that he then placed his tools and Thomas's tools on a cart to push them down the walkway to the “contractor entrance” (id., Exhibit 4 [Darcy EBT, pp. 25-26]). Claimant testified that he and Thomas could not push the cart containing their tools down the walkway to the main gate because it “was never shoveled” (id. at pg. 29), so they “had to pick the cart up, [and] walk it to the double gates” leading to the C loading dock, and that they then “had to walk to the contractor entrance ․ on the right-hand side of the loading dock area,” which claimant testified “is the only way into the building if you are a contractor” (id. at pg. 26; see id., Exhibit 5 [Flood EBT, pp. 21-24], Exhibit 6 [DeGraff EBT, pp. 31-32]). CO DeGraff testified that the C loading dock was “the dock of preference” for construction workers entering Shawangunk CF because it was typically closer to their job sites (id., Exhibit 6 [DeGraff EBT, pg. 37]). CO DeGraff testified that he and CO McCreery accompanied claimant and Thomas to the building entrance, and that CO McCreery was assigned to escort them to the construction site and to remain with them for the duration of their work day (see id. at pp. 21-22, 35-36, 52, 55-57; see also id., Exhibit 5 [Flood EBT, pp. 20-22]). Claimant testified that once they got to the double gates, there was a ramp next to the loading dock that led to the entrance of the building (see id., Exhibit 4 [Darcy EBT, pg. 30]). Shawangunk CF Maintenance Supervisor Jim Flood testified at his EBT that the ramp was about 20 feet wide and 40 feet long and had “a very gradual incline” (id., Exhibit 5 [Flood EBT, pg. 24]), and CO DeGraff testified that it was intended for use by vehicles making deliveries or transporting incarcerated persons in and out of the facility (see id., Exhibit 6 [DeGraff EBT, pp. 39, 41-42]). CO Thomas McCreery testified at his EBT that the ramp was a slanted “roadway that leads up to [the C loading dock],” and that a construction worker with a cart would have to use it to access the facility because there was no other ramp (id., Exhibit 9 [McCreery EBT, pg. 25]).

COs DeGraff and McCreery both testified that there was snow and ice on the sidewalk (see id., Exhibit 6 [DeGraff EBT, pg. 57], Exhibit 9 [McCreery EBT, pp. 40-41]). CO DeGraff testified that they proceeded through the double gates to the C loading dock, where claimant began pushing the cart up the ramp (see id., Exhibit 6 [DeGraff EBT, pp. 57-58]), that he saw “multiple vehicles [plowing] in multiple areas” as they walked from the guard shanty to the double gates (id. at pg. 90), and that the C loading dock area “was actually just plowed” when they reached that location (id. at pg. 91). CO McCreery testified that there was snow and ice in the C loading dock area, but that he did not see anyone from the maintenance department removing the snow and ice (see id., Exhibit 9 [McCreery EBT, pg. 41]).

Claimant testified that he did not believe that he needed to pick up the cart on the ramp, as he did on the walkway, because the ramp had “some ice and snow on the side of it, but nothing like the ․ walkway” (id., Exhibit 4 [Darcy EBT, pg. 30]), and that he “was at least a few steps up the ramp” (id. at pg. 36; see id., Exhibit 6 [DeGraff EBT, pg. 58]), when “the cart came to a dead stop, hit some ice or snow or both perhaps, and ․ [he] lost [his] footing on the ice” (id., Exhibit 4 [Darcy EBT, pg. 36]). Claimant testified, “I think I slipped with my right foot, and then everything went — you know, I went forward and then backwards. I kept sliding, and that is when ․ I think I twisted my knee, my left knee” (id. at pg. 36). Claimant testified that his lower back and buttock area impacted the ground first, and that his left leg had already twisted and been injured before he landed on the ground (see id. at pg. 37). CO DeGraff and CO McCreery likewise testified that there was snow and ice on the ramp at the C loading dock at the time of the accident, and that claimant slipped when he attempted to push the cart up the ramp after it became lodged in the snow and abruptly stopped (see id., Exhibit 6 [DeGraff EBT, pp. 58-59], Exhibit 9 [McCreery EBT, pg. 45]). Further, CO DeGraff testified that he witnessed claimant's right foot slip on snow and ice (see id., Exhibit 6 [DeGraff EBT, pg. 59) and CO McCreery testified that “[t]he cart suddenly stopping” caused claimant to slip (id., Exhibit 9 [McCreery EBT, pg. 45])

Claimant testified that when he landed on the ramp, he “noticed that there was some ice where [he] had fallen,” but that he “didn't notice it until after the fall” (id., Exhibit 4 [Darcy EBT, pp. 39-40]). Claimant testified that the snow that was on the ground and ramp was “a mix” of slushy and frozen snow (id. at pg. 40), that it was light out at the time of the accident, and that he did not see any sand on the ground or snow that had been shoveled off to the side (see id. at pg. 41). CO DeGraff also testified that he did not see any salt on the ramp prior to claimant's fall (see id., Exhibit 6 [DeGraff EBT, pg. 77]).

An Accident/Injury Investigation Report dated March 8, 2018, includes the following description of the accident: “On 3-8-18 [claimant] was being escorted into the facility to work. [Claimant] was pushing a cart with tools to the dock area, while pushing his cart got stuck in snow. [Claimant] slipped and fell to the ground, on his left knee causing injury” (id., Exhibit 10 [Accident/Injury Investigation Report, dated Mar. 8, 2018]). Sergeant Checchia stated in the report that claimant was “reported[ ] by staff to have slipped entering the facility C-Dock area. Snow present” (id.). The time of the accident was noted to be 7:40 a.m. (see id.). In a statement dated March 8, 2018, CO McCreery wrote that on that date, “at approx. 7:40 a.m. [claimant] was pushing a cart with tools to the C Dock. While pushing the cart the cart stuck in the snow and [claimant] slipped and fell on the ground on his left knee” (id., Exhibit 11 [McCreery Memo]). Sgt. Checchia relied upon CO McCreery's statement when he reported the incident to Lieutenant Borchert (see id., Exhibit 12 [Checchia Memo, dated Mar. 8, 2018]). Photographs of the ramp at the C loading dock taken at 8:08 a.m. on March 8, 2018, show an accumulation of snow on the ramp, in which footprints and wheel marks are visible (see id., Exhibit 13 [Photographs, dated Mar. 8, 2018], Exhibit 9 [McCreery EBT, pp. 53-55]).²

Shawangunk CF Plant Superintendent Larry Ebert testified that one of his duties was to “oversee ․ the maintenance department” (id., Exhibit 7 [Ebert EBT, pg. 23]; see id. at pg. 26), which was responsible for snow and ice removal at Shawangunk CF, including the area of the C loading dock (see id. at pp. 27-28]; see also id., Exhibit 6 [DeGraff EBT, pg. 60]). Flood, who supervised the Maintenance Department, testified that the snow and ice policy that was in effect for Shawangunk CF in March 2018 identified the individuals who would be assigned to snow removal duties in the event of a storm — including the motor vehicle operator and members of the maintenance and engineering departments — and snow removal equipment owned by the facility (see id., Exhibit 5 [Flood EBT, pp. 27-29], Exhibit 7 [Ebert EBT, pp. 52-53, 56, 65]). Flood further testified that he, Ebert, and CO Sperry, who served as “an outside utility officer,” would also assist with snow removal (id., Exhibit 5 [Flood EBT, pp. 30-31]; see id., Exhibit 7 [Ebert EBT, pp. 66-68]). Ebert testified that in March 2018, Shawangunk CF possessed two sanders and four pickup trucks to use for snow and ice removal, and that either type of vehicle could be used to remove snow from the C loading dock area (see id., Exhibit 7 [Ebert EBT, pp. 66-68], Exhibit 14 [Snow and Ice Removal Plan, ¶ 1]). Flood testified that Shawangunk CF also possessed snow blowers and shovels, which were used by teams of incarcerated persons to clear snow and ice in areas that the larger equipment could not reach (see id., Exhibit 5 [Flood EBT, pp. 33-34, 53-54], Exhibit 7 [Ebert EBT, pg. 58]). Lt. Malloy testified that the snow removal team would plow and salt the loading dock area, and then a crew of incarcerated persons would be assigned to remove snow and ice from the area with shovels (see id., Exhibit 15 [Malloy EBT, pp. 26-27, 30, 34]) because the snow removal team “wouldn't be able to get that close with the plows” (id. at pg. 29). Lt. Malloy testified that the crew of incarcerated persons would shovel the C loading dock area no earlier than 8:30 a.m., “[o]nce accounts clear [ ], they've eaten breakfast, programs are let out, [and] they get their equipment” (id. at pg. 53).

Pursuant to the Snow and Ice Removal Plan, it was the responsibility of the maintenance supervisor or plant supervisor to institute the “initial response” if a snow storm occurred during normal working hours and to inform the Watch Commander of the snow removal schedule for the remainder of the night if the storm continued past 3:00 p.m., but the “initial response” was the Watch Commander's responsibility if the storm occurred “[d]uring off-working hours, holidays, and weekends” (id., Exhibit 14 [Snow and Ice Removal Plan, ¶ 2]; see id., Exhibit 5 [Flood EBT, pg. 27], Exhibit 15 [Malloy EBT, pp. 27-28]). The Snow and Ice Removal Plan further provided that “[i]f at all possible, [the Watch Commander] should have staff called in and working at least two and one half hours before change of shifts to ensure the roads are passable” (id., Exhibit 14 [Snow and Ice Removal Plan, ¶ 3 (emphasis in original)]), that the motor vehicle operator and a member of the snow removal team would be called in “for all snow and ice storms on a rotating basis,” and that additional staff could be called in to provide additional assistance or relief (id. at ¶ 8; see id., Exhibit 5 [Flood EBT, pp. 27-28]). However, Ebert testified that if he knew that it was “going to start snowing at a particular time, [he would] assign two or three men there before that time” (id., Exhibit 7 [Ebert EBT, pg. 54]). The Snow and Ice Removal Plan stated that

“[t]he snow removal team's first priority is to keep the main road and entrance to the facility open at all times, followed by the perimeter road, east and west parking lots, truck trap, all interior facility roadways, including ‘C and E’ loading docks, E-Yard emergency road and the emergency road next to Medical. Repeat until all areas are clear of snow and ice”

(id., Exhibit 14 [Snow and Ice Removal Plan, ¶ 10]; see id., Exhibit 5 [Flood EBT, pp. 28, 70]). Flood testified that the snow removal team always “remove[d] snow immediately,” and that there would never be a situation when he requested snow removal and it was not done (id., Exhibit 5 [Flood EBT, pg. 49]). However, Flood testified that he did not “recall calling members of the snow and ice removal team on March 8, 2018” or “in the days prior,” that he did not maintain a logbook or journal of that information (id. at pp. 34-35), and that there was no documentation with respect to snow and ice removal at Shawangunk CF or to verify whether he called members of the snow and ice removal team on March 8, 2018 (see id. at pg. 49). Ebert similarly testified that “[t]here may have been” documentation reflecting the individuals who were assigned to perform snow and ice removal on any given day, but he “doubt[ed] [he] would be able to find it,” and that he did not keep a daily log, journal, or notes related to snow and ice removal at Shawangunk CF (id., Exhibit 7 [Ebert EBT, pg. 55]). Ebert further testified that he did not recall if he assigned anyone to perform snow and ice removal on March 8, 2018 (see id. at pg. 59). Lt. Malloy testified that his Watch Commander logbook entry for the shift from 9:45 p.m. on March 7, 2018, to 6:00 a.m. on March 8, 2018, did not indicate that he had assigned the snow maintenance team to perform snow removal (see id., Exhibit 15 [Malloy EBT, pg. 42]). Lt. Malloy testified that the logbook entries for the next three shifts likewise did not indicate that the snow removal team was called in, but because those shifts occurred during normal working hours, the maintenance supervisor, not the Watch Commander, would have called in the snow removal team (see id. at pp. 45-47]).

Claimant has submitted the expert affidavit of Certified Consulting Meteorologist Howard Altschule and Consulting Meteorologist John Lombardo, who aver that there was a snow storm that began at approximately 10:24 p.m. on March 6, 2018, and ended at approximately 10:40 p.m. on March 7, 2018, and that approximately thirteen and a half inches of snow accumulated (see id., Exhibit 17 [Altschule & Lombardo Affidavit, ¶ 14 (a), Exhibit C [Forensic Weather Investigation, pp. 13-14]).³ Altschule and Lombardo aver that the precipitation ended approximately eight hours and twenty minutes before claimant's accident occurred, and that the last time new ice formed — due to “the melting and refreezing of preexisting snow/ice” — prior to the accident was at approximately 1:30 a.m. on March 8, 2018 (id. at ¶ 14 [c]; see id., Exhibit C [Forensic Weather Investigation, pp. 13-14, 17]). The Forensic Weather Investigation report states that “Doppler radar images ․ indicated that no precipitation fell” in the area of Shawangunk CF on March 8, 2018, and that the air temperature remained below freezing until approximately 8:26 a.m. (id., Exhibit C [Forensic Weather Investigation, pg. 18]). Altschule and Lombardo aver that at the time of the accident, it was 31 degrees Fahrenheit and overcast, and there was “[a]pproximately 13.0” of pre-existing snow/ice ․ present on exposed, untreated, and undisturbed surfaces” at 7:30 a.m. on March 8, 2018 (id. at ¶ 14 [e]; see id., Exhibit C [Forensic Weather Investigation, pg. 18]). Altschule and Lombardo also aver that the photographs of the area where the accident occurred, the EBT testimony of claimant and CO McCreery, and the Accident/Injury Investigation Report are all consistent with their findings and the weather records, which indicate that there was pre-existing snow and ice at the accident location due to the snow storm that had ended at 10:40 p.m. on March 7, 2018 (see id. at ¶¶ 14 [f] - [m]), and they opine, within a reasonable degree of meteorological certainty, that

“[i]f the snow that was present had been cleared and removed after the winter storm ended approximately 8 hours and 50 minutes prior to the time of the incident, and if the ice that was present had been sufficiently treated with ice treatment chemicals after ice last formed approximately 6 hours prior to the time of the incident, then the dangerous and slippery conditions that caused [claimant] to fall would not have been present”

(id. at ¶ 14 [n]; see id., Exhibit C [Forensic Weather Investigation, pp. 19-20]).

On a motion for summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact” (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It is well settled that a court's task on a summary judgment motion is issue identification, not issue resolution (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]).

Claimant argues that he is entitled to partial summary judgment on his claim under New York State Labor Law § 241 (6) because the snow and ice that defendant's agents and employees allowed to accumulate on the ramp where the subject incident occurred constituted a slipping hazard as defined in Industrial Code § 23-1.7 (d) (see Roberts Affirmation, ¶ 35). Claimant argues that this claim falls “clearly ․ within the ambit of [Industrial Code § 23-1.7 (d)] inasmuch as “there is absolutely no dispute that claimant slipped on snow and ice on the ramp-walkway leading to the contractor's entrance” at Shawangunk CF, which was “the only way to get into the building for construction workers,” defendant's employees “were directing ․ claimant's route to his work area at the time of [the] accident,” defendant's agents and employees in the Shawangunk CF “maintenance department [were] responsible for the removal of snow and ice,” and “there was no sand or salt on the subject ramp at the time of claimant's accident” (Claimant's Memorandum of Law, pp. 5-6). Claimant further argues that he is entitled to partial summary judgment under Labor Law § 241 (6) because defendant's agents and employees allowed the ramp to remain “in an unsafe condition” in violation of Industrial Code § 23-1.7 (f), and the ramp was claimant's only means of access to his work area (id. at pg. 7).

Claimant further argues that he is entitled to partial summary judgment on his claim under Labor Law § 200 because defendant had actual and constructive notice of the dangerous condition of the ramp — that is, the snow and ice that had accumulated during the snow storm prior to claimant's accident — and failed to remedy the dangerous condition (see Roberts Affirmation, ¶¶ 37-38). Claimant argues that because his fall was caused not by the manner in which he was conducting his work but rather by a dangerous condition and the failure of defendant's agents and employees to remedy that condition, “[i]t is irrelevant ․ whether [defendant] exercised any supervisory authority over the means and methods by which [claimant] performed his work” (Claimant's Memorandum of Law, pg. 9), and the only issue is whether defendant had notice of the dangerous condition (see id. at pp. 9-10). Claimant argues that “the dangerous condition at issue — snow and ice on the ramp leading to the contractor's entrance — existed for a sufficient amount of time for [defendant] to discover it and to remedy it,” that claimant's “Experts’ Affidavit and meteorological report indicates that it stopped snowing at least 8 hours and fifty minutes prior to claimant's accident,” and that “[t]he Watch Commander Log for March 7th, Tours 2 and 3, indicates snow, therefore, establishing actual knowledge of said condition one day prior to” claimant's fall (id. at pp. 10-11). Claimant argues, based on the foregoing evidence, “that the snow and ice existed for an unreasonable period of time prior to the accident as to put [defendant] on notice of said dangerous condition,” and that defendant failed to remedy the dangerous condition in violation of Labor Law § 200 (id. at pg. 11).

In opposition to claimant's motion for summary judgment, defendant argues that even if claimant could prove that defendant violated safety regulations contained within the Industrial Code, as is required to state a claim under Labor Law § 241 (6), such a violation “would not establish negligence as a matter of law ․ but is merely some evidence to be considered on [the] question of defendant's negligence” (Masri Affirmation, ¶ 27). Defendant argues that it was claimant who created the dangerous condition that was the proximate cause of his fall by pushing the cart through snow and ice, as “[c]ommon sense dictates that if someone is pushing a heavy cart through snow and/or ice, there are a number of things that could cause the cart to suddenly stop and for the momentum to backfire into one's body causing the leg(s) to slip” (id. at ¶ 28). Defendant further argues that the cart that claimant was pushing at the time of his accident was owned by Hudson Valley Electrical, not defendant, and that CO DeGraff and CO McCreery, who were escorting claimant and Thomas on the morning of the incident, “did not exercise supervisory control over the transport of the tools” and “never directed claimant to load the tools into a cart and push it up a ramp after a major snow storm” (id.).

Defendant further argues that performance of its “duty to remove ice and snow ․ is measured by general negligence principles, [and] liability is dependent upon whether the owner or general contractor had actual or constructive knowledge of the accumulation of ice or snow at the worksite and a reasonable opportunity to remedy the condition” (id. at ¶ 30), and that here, the EBT testimony of CO DeGraff and claimant himself contradicts the opinion of claimant's weather experts and raises “a material issue of fact as to when the storm ceased” (id. at ¶ 32). Defendant argues that inasmuch as a property owner cannot be held liable for injuries that occur while a storm is in progress or for a reasonable time after the storm has ceased, and there was some evidence that snow removal was ongoing at the time of claimant's fall, “whether or not maintenance staff were actively clearing the snow at the time of the accident” constitutes an additional material issue of fact precluding summary judgment. Finally, defendant argues that claimant is not entitled to summary judgment because “it is reasonable to conclude” based on claimant's testimony that his commute to Shawangunk CF on the morning of the accident took significantly longer due to the weather “that the conditions at Shawangunk CF were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality,” and because “a negligence cause of action cannot be derived from a failure to remove all ice and snow from a given area” (id. at ¶ 34).

In reply, claimant argues that defendant has mischaracterized portions of the record in its opposition to claimant's motion (see Reply Affirmation, ¶¶ 4-15), that defendant has merely speculated that something other than snow and ice on the ramp caused claimant's cart to become stuck and stop suddenly (see id. at ¶ 17), and that “[i]t is undisputed that claimant slipped due to snow and ice on the ramp” (id. at ¶ 18). Claimant further argues that the storm in progress doctrine does not apply to Labor Law § 241 (6) claims, nor is claimant required to prove negligence or actual or constructive notice (see id. at ¶¶ 19-22). Claimant argues, in any event, that the storm abated late in the evening on March 7, 2018 (see id. at ¶ 24), that the C loading dock area was “a lesser priority” under the facility's snow removal policy, and that claimant's “accident occurred due to an undisputed unsafe condition at the relevant jobsite,” thus entitling him to summary judgment on the issue of liability (id. at ¶¶ 25-26).

Turning first to claimant's Labor Law § 200 claim, that statute requires that “[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places” (Labor Law § 200 [1]). Labor Law § 200 (1) is “a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), and “[c]ases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed” (Edwards v State Univ. Constr. Fund, 196 AD3d 778, 780 [3d Dept 2021] [internal quotation marks omitted]).

“Where, as here, [the claim alleges] that the underlying accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 ․ will be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time”

(Vogler v Perrault, 149 AD3d 1298, 1299 [3d Dept 2017] [internal quotation marks omitted]; see Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017]). “Constructive notice ․ requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendant[ ] to discover it and take corrective action” (Tate v Golub Props, Inc., 103 AD3d 1080, 1081 [3d Dept 2013] [internal quotation marks omitted]). However, the storm in progress doctrine suspends “a landowner's duty to remedy a dangerous condition caused by a storm ․ while the storm is in progress and for a reasonable time after it has ceased” (Sanders v Wal-Mart Stores, Inc., 9 AD3d 595, 595 [3d Dept 2004]; see Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021 [2016]).

At the outset, the Court must first examine whether defendant had a duty to clear snow and ice from the ramp at the time of claimant's accident. In this regard, defendant argues that there is a genuine issue of fact as to when the snow storm ended, and thus whether the storm in progress doctrine applied to suspend defendant's duty to clear the snow and ice from the ramp, so as to preclude summary judgment on claimant's Labor Law § 200 claim. Claimant has presented expert proof, based upon data from the National Weather Service, that the storm related to this claim ceased on or around 10:40 p.m. on March 7, 2018 (see Roberts Affirmation, Exhibit 17 [Forensic Weather Investigation, pp. 14-16]), approximately nine hours prior to claimant's accident,⁴ and claimant testified during his EBT that it was not snowing when he drove to Shawangunk CF on March 8, 2018, but that it had snowed the night before. However, CO DeGraff testified that the storm did not end until 6:00 or 6:30 a.m. on March 8, 2018, 70 to 100 minutes before claimant's accident. Moreover, there is evidence in the record that defendant's agents were in the process of clearing snow throughout the facility at the time of claimant's accident and had not yet cleared the snow from the ramp. Inasmuch as there is a question of fact as to when exactly the storm ended, and in viewing the facts “in the light most favorable to the non-moving party” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh 22 NY3d 470, 475 [2014] [internal quotation marks omitted]), i.e. that the storm had concluded 70 minutes before claimant's accident and defendant's agents were in the midst of clearing snow throughout the facility according to its Snow and Ice Removal Plan, the Court cannot conclude as a matter of law that defendant's duty to clear the ramp had not been suspended (see Imperati v Kohl's Dept. Stores, Inc., 91 AD3d 1111, 1113 [3d Dept 2012] [question of fact exists as to whether storm in progress doctrine applied where precipitation ended two hours before the accident]; see also Santana v New York City Hous. Auth., 128 AD3d 564, 564-565 [1st Dept 2015] [storm in progress doctrine applied where precipitation ended 82 minutes before the accident]). Accordingly, partial summary judgment will not be granted on claimant's Labor Law § 200 claim.

Turning next to claimant's Labor Law § 241 (6) claims, that statute imposes on property owners the nondelegable duty to “comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]; Sweet v Packaging Corp. of Am, Tenneco Packaging, 297 AD2d 421, 422 [3d Dept 2002]), which are codified in the Industrial Code found in 12 NYCRR part 23.⁵ The “Court [of Appeals] has consistently rejected the notion that a violation of [Labor Law §] 241 (6) results in absolute liability irrespective of the absence of some negligent act which caused the injury,” and has stated that “a violation of an administrative regulation promulgated pursuant to statute ․ is simply some evidence of negligence which the [finder of fact] could take into consideration with all the other evidence bearing on that subject” (Rizzuto, 91 NY2d at 349-350 [emphasis in original, internal quotation marks omitted]). Thus, to prevail on a claim under Labor Law § 241 (6), a claimant “must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence” (Copp v City of Elmira, 31 AD3d 899, 899 [3d Dept 2006] [internal quotation marks omitted]; see St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]; Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 146 [1st Dept 2012]).

Here, claimant first argues that he is entitled to partial summary judgment on his Labor Law § 241 (6) claim because defendant's agents violated Industrial Code § 23-1.7 (d), which provides that

“[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing”

(12 NYCRR § 23-1.7 [d]; see Sweet, 297 AD2d at 422 [“employers are prohibited from permitting an employee to work on an elevated surface that is in a slippery condition”]). For a claimant to succeed on such a claim, “there must be some evidence that the slippery condition existed for a sufficient length of time for it to be discovered and remedied, as is the rule in any negligence action based upon a slip-and-fall” (McCague v Walsh Constr., 225 AD2d 530, 531 [2d Dept 1996]).

As an initial matter, there is no dispute that Industrial Code § 23-1.7 (d) “mandates a distinct standard of conduct, rather than a general re-iteration of common law principles, and is precisely the type of ‘concrete specification’ ” required to impose liability under Labor Law § 241 (6) (Rizzuto, 91 NY2d at 351; see Ross, 81 NY2d at 503-505). Moreover, it is not disputed that Industrial Code § 23-1.7 (d) applies to the work being done on March 8, 2018, at Shawangunk CF and that the ramp was one of the surfaces covered by that regulation. The evidence on this motion clearly and unequivocally demonstrates that there was a violation of Industrial Code § 23-1.7 (d) inasmuch as there was snow and ice on the ramp on the morning of the accident, which constituted a slippery condition. Further, the evidence establishes that claimant's fall occurred when the cart he was pushing became stuck in snow and/or ice on the ramp, that the slippery condition of the ramp caused him to fall, and that the slippery condition existed for a sufficient period of time to be discovered and cleared. Specifically, claimant testified that the cart he was pushing on the snow-covered ramp “came to a dead stop” in the snow or ice on the ramp, that he thereafter lost his footing (Roberts Affirmation, Exhibit 4 [Darcy EBT, pg. 36]), and that he noticed after he fell that there was ice where he had fallen (see id. at pp. 39-40). CO DeGraff and CO McCreery also testified that there was snow and ice on the ramp at the time of claimant's fall, the investigation report and CO McCreery's written statement prepared after the accident both stated that claimant's fall occurred when his cart got stuck in the snow on the ramp, and photographs taken shortly after the accident on the morning of March 8, 2018, show the ramp completely covered in snow. CO DeGraff testified that he saw claimant's right foot slip on snow and ice (see id., Exhibit 6 [DeGraff EBT, pg. 59]), and CO McCreery testified that claimant slipped when the cart he was pushing came to an abrupt stop in the snow (see id., Exhibit 9 [McCreery EBT, pg. 45]). Lastly, there is ample evidence in the record that the snowy and icy condition had existed on the ramp for a sufficient period of time to be discovered and remedied inasmuch as the storm had begun at approximately 10:30 p.m. on March 6, 2018, nearly 36 hours prior to claimant's accident, and that cleanup efforts in and around the C loading dock area were underway at the time of the accident. The Court therefore concludes that claimant has met his prima facie burden on this summary judgment motion of establishing that defendant violated Industrial Code § 23-1.7 (d) by allowing the ramp at the C loading dock to remain in a slippery condition, and that the violation of that regulation caused claimant's injury.

To the extent that defendant argues that there is a genuine issue of fact as to whether claimant's actions were the sole proximate cause of the accident or that claimant was otherwise wholly responsible for his accident (see Masri Affirmation, ¶ 28), the Court disagrees. “A negligent defendant may be relieved of liability if the [claimant's] own conduct, or that of a third party, has intervened to ‘break[ ] the chain of causal connection’ between that defendant's breach of duty and the ensuing injury” (Miller v Town of Fenton, 247 AD2d 740, 741 [3d Dept 1998], quoting Mesick v State of New York, 118 AD2d 214, 218 [3d Dept 1986], lv denied 68 NY2d 611 [1986]). “To constitute such an intervening, or superseding, cause, the conduct in question must be so reckless or unforeseeable that it is unreasonable to hold the defendant responsible for the resulting damages” (Miller, 247 AD2d at 741). The evidence before the Court establishes that the C loading dock was the preferred entrance for construction workers entering Shawangunk CF and that there was no other way to access the entrance using a cart without taking the ramp (see Roberts Affirmation, Exhibit 6 [DeGraff EBT, pg. 37], Exhibit 9 [McCreery EBT, pg. 25]). The evidence also establishes that claimant was pushing the cart up the ramp when it got stuck in the snow, causing him to slip on snow or ice. Implicit in defendant's argument is that claimant should have not pushed the cart up the snowy ramp, but rather should have carried the tools to the entrance. Notwithstanding that, with the benefit of hindsight, carrying the tools may have been the more prudent course of action, and giving defendant the benefit of every possible inference, there are no genuine issues of material fact tending to demonstrate that claimant's conduct was “so reckless or unforeseeable” so as to constitute an intervening or superseding cause of this accident that would absolve defendant of liability (Miller, 247 AD2d at 741). Simply stated, there is no evidence in the record tending to establish that claimant's conduct in pushing the cart up the snow covered ramp in treaded work boots was reckless, or that it was unforeseeable under the circumstances that claimant would push the cart up the ramp.

Moreover, any evidence of claimant's comparative negligence would not preclude partial summary judgment. To be sure, the Appellate Division, Third Department, has previously held that evidence of a plaintiff's comparative fault is sufficient to deny a plaintiff's motion for summary judgment on a Labor Law § 241 (6) claim (see Smith v Robert Marini Bldr., Inc., 83 AD3d 1188, 1189 [3d Dept 2011]; Coleman v Crumb Rubber Mfrs., 92 AD3d 1128, 1131 [3d Dept 2012]). However, the Court of Appeals subsequently clarified that a plaintiff on a summary judgment motion “does not bear the burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault” (Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018] [emphasis added]; see also White v State of New York, UID No. 2018-053-522 [Ct Cl, Sampson, J., May 11, 2018]), and therefore any issue of claimant's comparative fault will be determined during a subsequent trial on claimant's comparative fault and damages.

Lastly, to the extent defendant relies upon the storm in progress doctrine as a basis to defeat claimant's summary judgment motion with respect to the Labor Law § 241 (6) claim for failing to clear the ramp (see Masri Affirmation, ¶ 32), that argument is misplaced inasmuch as Labor Law § 241 (6) “includes no exception for storms in progress,” and thus defendant “had a duty [under that provision] to remove ice and snow ․ despite the existence of a storm in progress” (Rothschild v Faber Homes, 247 AD2d 889, 890 [4th Dept 1998]; see also Booth v Seven World Trade Co., L.P., 82 AD3d 499, 502 [1st Dept 2011]).

Accordingly, claimant's motion for partial summary judgment on its Labor Law § 241 (6) claim alleging a violation of Industrial Code § 23-1.7 (d) will be granted.

Claimant further argues that he is entitled to partial summary judgment on his Labor Law § 241 (6) claim because defendant's agents and employees violated 12 NYCRR 23-1.7 (f), which mandates that ramps are to be provided “as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided” (12 NYCRR 23-1.7 [f] [emphasis added]). Here, it is undisputed that the ramp where claimant's accident occurred was not provided by the State in order to allow claimant access to his work site but rather was a pre-existing structure that, according to the EBT testimony of CO McCreery and Flood, was more akin to a gradually inclined roadway used by vehicles for deliveries and transportation of incarcerated persons. In the Court's view, it is clear from the plain language of the regulation that it addresses ramps that are installed specifically in connection with a construction project to allow workers access to various levels of the project, and not pre-existing structures such as the ramp at issue here. Because claimant's “accident occurred on a permanent, concrete ramp which was a part of the building, [Industrial Code] section 23-1.7 (f) is inapplicable,” and claimant is not entitled to summary judgment with respect to that claim (Tesoro v BFP 300 Madison II, LLC, 98 AD3d 1031, 1032 [2d Dept 2012]). Accordingly, claimant will not be granted summary judgment on his Labor Law § 241 (6) claim alleging a violation of Industrial Code § 23-1.7 (f), and the Court, in searching the record, will instead grant summary judgment to defendant dismissing this claim (see CPLR 3212 [b] [“If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion”]).

In sum, claimant is entitled to summary judgment on his Labor Law § 241 (6) claim that defendant violated 12 NYCRR 23-1.7 (d) by allowing the ramp where claimant fell to remain in a slippery condition. However, claimant is not entitled to summary judgment on his Labor Law § 200 claim, as there is a genuine issue of fact as to whether the storm in progress doctrine applied, or on his Labor Law § 241 (6) claim that defendant violated 12 NYCRR 23-1.7 (f) inasmuch as that provision does not apply to the ramp that is the subject of this claim.

Accordingly, it is

ORDERED, that claimant's motion number M-96878 is hereby GRANTED IN PART, to the extent that judgment is granted on the issue of liability on claimant's cause of action pursuant to Labor Law § 241 (6) for a violation of 22 NYCRR § 23-1.7 (d); and it is further

ORDERED, that defendant is entitled to summary judgment dismissing claimant's cause of action pursuant to Labor Law § 241 (6) for a violation 22 NYCRR § 23-1.7 (f), which is hereby DISMISSED; and it is further

ORDERED, that claimant's motion number M-96878 is hereby DENIED in all other respects.

The Clerk of the Court is directed to enter interlocutory judgment accordingly.

Papers considered:

1. Notice of Motion for Summary Judgment, dated June 8, 2021;

2. Affirmation of Richard B. Roberts, Esq., in Support, dated June 8, 2021, with Exhibits 1-19;

3. Statement of Undisputed Material Facts, dated June 8, 2021;

4. Memorandum of Law in Support of Claimant's Motion for Summary Judgment, dated June 8, 2021;

5. Affirmation of Shadi Masri, AAG, in Opposition to Motion for Summary Judgment, dated September 1, 2021;

6. Reply Affirmation of Richard B. Roberts, Esq., dated September 14, 2021.

FOOTNOTES

1.   CO DeGraff was Shawangunk CF's Bid Construction Officer on March 8, 2018, and his responsibilities included escorting contractors within the facility (see Roberts Affirmation, Exhibit 6 [DeGraff EBT, pp. 8-9]).

2.   Claimant has submitted an affidavit of Karen Hansen, an Inmate Records Coordinator at Shawangunk CF, who avers that she “was unable to locate or obtain any physical or electronic color photos related to the above incident” in response to a January 28, 2021 request by an investigator from the Office of the Attorney General (Roberts Affirmation, Exhibit 18 [Hansen Affidavit, ¶ 6]).

3.   According to Altschule and Lombardo's Forensic Weather Investigation report, the National Weather Service in Albany had issued a Winter Storm Warning for Eastern Ulster County from 7:00 a.m. on March 7, 2018, through 7:00 a.m. on March 8, 2018 (see Roberts Affirmation, Exhibit 17 [Altschule & Lombardo Affidavit, Exhibit C (Forensic Weather Investigation, pp. 14-15)]).

4.   The CPLR provides that “[a]ny record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated” (CPLR 4528).

5.   The Industrial Code defines “construction work,” as relevant here, as “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures ․ and includes ․ the work of ․ the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose” (12 NYCRR 23-1.4 [b] [13]).

W. Brooks DeBow, J.