FILED: COURT OF CLAIMS(ALBANY DISTRICT)06/25/2013 CLAIM NO NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 06/25/2013

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1 FILED: COURT OF CLAIMS(ALBANY DISTRICT)06/25/2013 CLAIM NO NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 06/25/2013 STATE OF NEW YORK COURT OF CLAIMS MARK FABIANO and KATHERINE FABIANO REPLY AFFIDAVIT -against- Claimants, CLAIM NO.: THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, Respondents. STATE OF NEW YORK COUNTY OF ALBANY ) SS: Matthew J. Kelly, being duly sworn, deposes and says that: 1. i am an attorney and counselor at last duly authorized to practice in the State of New York. 2. I make this affidavit in reply to the opposition submitted by the plaintiff to our Motion for Summary Judgment. 3. That the plaintiff testified that his fellow employees who were on the platform did wear safety harnesses (Exhibit D to original papers Fabiano deposition, page 39). That Mr. Fabiano knew that the hangers were installed (Fabiano deposition, page 35). That Mr. Fabiano testified that at the moment of his accident, he had stepped on a platform, which he knew was not supposed to be secured at that point. (Fabiano deposition, page 52). 4. That the contentions of Greg Internicola should be reviewed in conjunction with the attached documents regarding his work as the safety officer. In that regard, Mr. Internicola was at the weekly safety meeting on July 5, 2011, where there was discussion about site specific fall 1

2 protection and that those requirements were more stringent than OSHA in the DOT region where the bridgework was being done (deposition Exhibit K 9/5/12). Mr. Internicola was also at the safety meeting on July 18, 2011, where personal protective equipment was also discussed. Mr. Internicola was also the safety officer in attendance on August 18, 2011, where there was discussion about fall protection. Mr. Snyder also advised Blast-All on August 11, 2011 with regard to the need to use fall protection and the quality control foreman was advised. 5. Mr. Internicola was also advised on June 22, 2011 with regard to one of the Blast-All employees not wearing personal fall protection. He also signed off on being aware that on July 19, 2011, a worker was not wearing personal fall protection. He indicated that the crew was informed of a violation, and since they were all living in the same house, there was no need for a further safety meeting. These documents establish that Mr. Internicola was well aware of the requirements for wearing safety harnesses and personal fall protection. In this circumstance, Mr. Fabiano did not wear a safety harness. As testified to by his co-employees, Stoddard and Byram (Affidavits of Stoddard and Byram in original papers) there was an opportunity for him to tie himself off and he deliberately chose not to. 6. Also, Mr. Internicola does not address the fact that Mr. Fabiano could have accessed the work site by going to the platform truck. As Mr. Fabiano testified, his co-workers on the platform were all wearing safety harnesses. Had he done so, he could have done the work safely. 7. That the plaintiff's attorney does cite a number of cases in his affidavit. However, those cases are of no moment in light of the overriding authority of Gallagher, Montgomery and Robinson from the Court of Appeals which are addressed in our Memorandum of Law. The plaintiff was the sole proximate cause and the plaintiff has merely cited cases that pre-date the 2

3 controlling Court of Appeals authority. As such, those cases are no longer reflective of the state of the law. 8. That in addition, the plaintiff contends that 241(6) has been violated. However, the plaintiff has failed to set forth the fact that while he cites an Appellate Tenn case, in support of his contention regarding the safety belt, there is good Appellate Division Law to the contrary. In Ramierez v. MTA, 106 A.D.3d 799, the court dismissed the claim under 23-1,16 because while the plaintiff was not wearing a safety harness, it had been offered to him, (106 A.D.3d, 799). Since Mr. Fabiano had a safety harness, but chose not to use it this provision would not apply. 9. That with regard to , it is not applicable when life nets are not in use. (Panek v. County of Albany, 286 A.D.2d 86, 3r d Dept. reversed on other grounds 99 NY2d 452. In Spenard v. Gregware, 248 A.D.2d, 868 3" Dept., 1998), the cited regulation was found inapplicable when no life net was provided on the job site. (Forschner v. Jucca, 63 A.D,3d 96 2d Dept. 2009). 10. That the plaintiff cites the testimony by Dennis Smith that has been amended and corrected. It is inappropriate for him to cite the uncorrected testimony. In that regard, the State Inspector Mr. Smith has set forth that the plaintiff could have tied off to the scaffolding or the existing bridge rail with the retractable lanyard. He also could have walked around and entered the platform safely from the finished end where his co-workers did. He failed to avail himself of any of these options. 11. Photographs of Perry Snyder, the State Inspector, using the retractable lanyard on the bridge involved, are attached to his reply affidavit. They reflect that the device can be affixed to the bridge railing and provide fall protection to the worker underneath the bridge. 3

4 Sworn to before me this rqi-5172day of June, /7,-.0 otary Public-State of New York PATRICIA A. STRATTON Notary Public, State of New York Qualified in Albany County Commission Expires. 91 V/Y- 4

5 Exhibits on Internicola: 7/5/11 Weekly Safety Meeting 7/18/11 Daily Safety Meeting 8/18/11 Weekly Safety Meeting 8/11/11 Engineer's Daily Contract Diary 6/22/11 Daily Inspection Report Log 7/19/11 Written Warning

6 FORM 3 WEEKLY SAFETY MEETING DATE 2/C/s? 1 t LOCATION ci SAFETY OFFICER _ o /a, ATTENDANCE Ore 5 // TOPICS COVERED 1;t1 I. _57+ 5rec; ft c Ft% It ir' ` rec.,z--t i s tyi 6.r.Q. f 1 IA e rt t Al 517 I-/..r" e 4-11.; 4 I) (.3 r 10\ % EXHIBIT OMB Environmental Consulting, Inc. Rev.O 4/19/11 Page -58- Blast-All NYSDOT D261081

7 BLAST ALL Inc. Industrial Coating Structural Maintenance Abrasive Blasting 0. Box ) / 860) LO S2 to 0 5 Date:. ;.611 Subject of Safety Meeting: EvF Istm aco-a14 eon. mot Fri ( );' 04- friars 1' lc% P.slyfA Z. LO`fq Z,L./ fr animmegir 0/ ATTENDANCE FORM DAILY SAFETY MEETING Job: aa8 Ptr s beto..1 er,,fee.m,e Equal Opportunity Employer

8 FORM 3 WEEKLY SAFETY MEETING DATE* le / 01 / LOCATION Fie I 0. Fice_ Lief SAFETY OFFICER ATTENDANCE elonttscatif of,e9-9,4/5 toe t( e4/ 114 r c L a r,r (4 ( TOPICS COVAtti v :MAD 1. ro.tt Pr ot 2. c O1 fec.micaor01 e_ poi et n man Ic )1 col eck'd Det) EXHIBIT qt-sif: 0 MB Environmental Consulting, Inc. Rev.0 4/19/11 Page -58- Blast-All NYSDOT D261081

9 MURK 2 (1/07) JOB STAMP D261081, PIN TAINT 9 BRIDGES, RIES 23, 42 & 296 GREENE COUNTY CONTR:11ANOVER/BLAST ALL INC. (SURETY TAKEOVER) CONTRACTOR'S WORK HOURS: 0-7 df to 1 9 7? g ENGINEER'S DAILY CONTRACT DIARY Control Date: Day of Week: S Sheet No. / of 5////if M AM Weather ea y' 6-1-4,,./x/t. Tem.erature Mill[rXIMENII. PM DWR No. Inspector sio-r4 Work Assignment C o tvr.1 I./V*4 4V.9)t) r V/ 4e, A.re-73 Wei-/d/?-1,a -reac-pf. rho CY:-6,' /4 rr 0-04, 44 6 MAINTENANCE & PROTECTION OF TRAFFIC: 15144ot( (517-1' 1) am/ /0/700 Are,23, tirre.otm / c., po,v7-kau-e-,0 /- /4dA-4,--g.) AP-P/c-- 5 /./ellt , 7-3 a / 87 iiort4/4 cv/-7-5 -pot.c. t5rre \i'm 5 (5 - "8 ittacs- 4/62(4L re tc4 NARRATIVE: C H R1 5 5c-fr a (-;'C V I 5 I P2Mee-7- ToaPf' r 11-6 W./A5.41- Sire 414/ Awn 04i 5171 / O,v A.77_23 //v Y of= /-///4 g 4/.5 V Occ.4-6 OA& 431-' re" tv0a.k.02--s kiv4 Omat- Ibr 711 5veta.try7kit,Dev7 64 V a- ke yotz.441-6,, qie 14/*Mfive,_ HL peahv eg. r Ihr flat- r--ez(-444,--4.,/ Q 4 rii4 1/10-n-rion/ iv aai-4 Azstiz.-r - /Iv 1 57bP tvoru4 0A,O,E2 EXHIBIT

10 QC.114 l'orivi G-2 DAILY INSPECTION REPORT LOG 1 Date t S - 4 P' of 1 Meat Time 00 Remarks Cy%feers ioy. 13f e toacio Ti' 6 o o, --r tkss k A. b0f-1\ dock-cot.e-otike a Peri- 4 tin* oroh.er Pe Fr4 5 E;)..F-' 5 Wt 1\ b IIIII M = Lighting Natural, lighting 153i Artificial lighting El gazardous Atmosphere non-finardcua,atracaphere Lighting achieved (general maa 10, blasting and painting 20 and' inspection 50) Inspection rquipment 'Used. Equipment Serial Iclamber Meets Requirememta QC Inapvatorici Siguntate 1 I Qt S Review Savisenautaaa consult ng ine. QCM e G-4

11 FORM 1 WRITTEN WARNING Date: -7( Project Location: iq L. tc, _sehl e3 c; Safety Officer: Grey rateraiecio, Warning: Minor 1" TA 3ra 4th Major 0 2nd 3' 4th Warning issued to:.56.m fyi ; Al c e Reason for warning: a t) S eft; ea-.50," 810 n d otja )1 taipp,!(-- Core ox nc.f- ta.e(ria PrPs a_torrl( 3 l'? 111 Corrective action required: -Po; it);) A. Cloy, fa evi of,8/ct.ctc f Disciplinary action taken: (4)Z /1 ofter 0- Lt.) go 0011 Does any equipment require repair or replacement: Should the crew be informed of violation: S Will a safety meeting be required to inform. the crew: Aii> " x/ n1 e 56Jrie ockce 1246 celattaa4.4 Sakbeer's Signature e s Signature MB Environmental Consulting, Inc. Rev.0 4/19/11 Page -56- Blast-All NYSDOTD261081