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Albanese v. City of New York9/23/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered October 12, 2003, which, to the extent appealed from as limited by the briefs, denied defendant City of New York's motion for summary judgment dismissing the complaint, modified, on the law and on a search of the record, to deem the City an owner within the meaning of Labor Law sections 240 and 241, and otherwise affirmed, without costs.
This is a personal injury action for damages allegedly sustained when plaintiff fell from a scaffolding (known as a stripping rig or stripping buggy) hung from a Cross Bronx Expressway ramp over the northbound Bruckner Expressway. Plaintiff claims that the scaffolding had been hung so low that his fall happened when a tractor trailer struck the bottom of the scaffolding. The work on the roadway was being done pursuant to contracts between the State of New York and DeFoe Corp. and Haks Engineering. Defendant City was not a signatory to the contract. The City moved for summary judgment claiming that State Highway Law sections 340-a and 340-b deem New York State to be the owner during the reconstruction and renovation period when plaintiff was injured. The IAS court found that the City's motion raised an issue of fact on the issue of highway ownership.
The City is vested with ownership of major highways, including those designated as interstate routes, as a matter of statute (Highway Law § 349-f). This includes approval power over all plans and specifications for reconstruction and renovation such as those involved in this case (Highway Law § 349-c[3.4]). The work here was being performed by the State under the authority of a work permit granted by the City of New York. While the City did not perform any of the actual construction work on the project, it reviewed the designs and issued permits without which the State could not proceed. The City has previously argued that its ownership is suspended during such State work, we have rejected such claim, and there is nothing in the present record which would require a different conclusion (DeLoach v City of New York, 258 AD2d 384 ). We adhere to that precedent which is consistent with the Court of Appeals' holding that the Highway Law creates joint ownership between State and City (Nowlin v City of New York, 81 NY2d 81, 87-88 ). We have considered the remaining City claims and find them to be without merit.
All concur except Andrias and Williams, JJ. who dissent in a memorandum by Andrias, J. as follows:
ANDRIAS, J. (dissenting)
Because there are, at the very least, issues of fact as to the City's status as an owner of the State-owned arterial highway work site that cannot be resolved on the present record, I would affirm the motion court's denial of the City's motion for summary judgment which sought dismissal of plaintiff's causes of action based, inter alia, upon Labor Law § 200, § 240 and § 241.
It is undisputed that plaintiff Carlo Albanese was allegedly injured on August 26, 2000 while he was working on a scaffold (also known as a stripping rig or stripping buggy) that hung from a Cross Bronx Expressway overpass above the Bruckner Expressway in the Bronx. As he stood on the scaffold, which allegedly was hung too low, it was struck by a tractor trailer passing underneath on the Bruckner Expressway, throwing plaintiff, who was wearing a full safety harness, into the air and back down onto the scaffolding.
Plaintiffs state that there is no dispute that the accident occurred both on and above the Bruckner Expressway, approximately 206 feet south of Zerega Avenue
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