DeLEON v. STATE

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Supreme Court, Appellate Division, Second Department, New York.

John DeLEON, respondent, v. STATE of New York, appellant.

Decided: October 31, 2005

STEPHEN G. CRANE, J.P., FRED T. SANTUCCI, WILLIAM F. MASTRO, and MARK C. DILLON, JJ. White, Quinlan & Staley, LLP, Garden City, N.Y. (Joanne Emily Bell of counsel), for appellant. Edelman, Krasin & Jaye, PLLC (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Paul Edelman and Brian J. Isaac] of counsel), for respondent.

In a claim to recover damages for personal injuries, the defendant appeals from an order of the Court of Claims (Lack, J.), dated June 24, 2004, which denied its motion for summary judgment dismissing the claim.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the claim is dismissed.

The claimant was a construction worker employed by a company hired to perform work on the Long Island Expressway (hereinafter the LIE), a roadway owned by the defendant.   The claimant was injured when a vehicle operated by a highly intoxicated driver traveled in the wrong direction on a closed section of the LIE, entered the construction zone at a high rate of speed, and struck him.   It is unclear precisely how and where the vehicle entered the highway.   The claimant subsequently commenced this claim to recover for his injuries, asserting theories of common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).   The claim alleged that the defendant was liable based on its failure to properly safeguard the construction zone.   Following discovery, the defendant moved for summary judgment dismissing the claim on various grounds.   The Court of Claims denied the motion.   We reverse.

 With regard to the claims sounding in common-law negligence and the violation of Labor Law § 200, the defendant satisfied its initial burden on the motion by submitting sufficient evidence demonstrating that the safeguards provided for the construction zone completely conformed to relevant industry standards and practices, and that the defendant was not otherwise negligent in failing to adequately safeguard the construction zone (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition, the claimant failed to raise a triable issue of fact.   The expert affidavit proffered by the claimant as the sole evidence to defeat the motion should have been rejected as he did not identify his expert in pretrial disclosure and served the affidavit after the date on which the note of issue was waived (see Safrin v. DST Russian & Turkish Bath, 16 A.D.3d 656, 657, 791 N.Y.S.2d 443;  Gralnik v. Brighton Beach Assoc., 3 A.D.3d 518, 770 N.Y.S.2d 633;  Dawson v. Cafiero, 292 A.D.2d 488, 489, 739 N.Y.S.2d 190).   Moreover, the expert affidavit consisted of mere speculative assertions unsupported by adequate foundational facts and accepted industry standards (see Romano v. Stanley, 90 N.Y.2d 444, 451-452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Veccia v. Clearmeadow Pistol Club, 300 A.D.2d 472, 752 N.Y.S.2d 84;   Martinez v. Roberts Consol. Indus., 299 A.D.2d 399, 749 N.Y.S.2d 279).

 Similarly, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to Labor Law § 241(6) by demonstrating that it complied with the Industrial Code provision at issue which did not reasonably require the additional safety measures advocated by the claimant (see Juncal v. W 12/14 Wall Acquisition Assoc., LLC, 15 A.D.3d 447, 449, 790 N.Y.S.2d 193).   Inasmuch as the claimant merely submitted the conclusory affidavit of its expert in opposition, the defendant was entitled to the dismissal of this cause of action.

 The defendant also demonstrated that it was entitled to summary judgment dismissing the cause of action pursuant to Labor Law § 240(1) by establishing that the claimant's accident did not involve an elevation-related hazard (see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;  Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489, 634 N.Y.S.2d 35, 657 N.E.2d 1318), a circumstance which the claimant did not contest.   Accordingly, the defendant's motion for summary judgment should have been granted in its entirety.

In view of the foregoing, we need not consider the defendant's remaining contentions.

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