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Court of Claims, November 3, 2003
APPEARANCES OF COUNSEL
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. (Joseph T. Perkins of counsel), for defendants. James C. Hayes, III, for claimant. {**2 Misc 3d at 932} OPINION OF THE COURT Diane L. Fitzpatrick, J.
Defendant moves this court for summary judgment pursuant to CPLR 3212. Claimant opposes the motion and cross-moves for permission to serve an amended/supplemental third bill of particulars pursuant to CPLR 3025 (b). The court also heard oral argument on the motions.[FN1]
The court grants claimant's cross motion for permission to serve the amended/supplemental third bill of particulars because defendant has no objection. The violations of sections of the Industrial Code, raised for the first time in claimant's amended/supplemental third bill of particulars, will be addressed as part of this summary judgment motion since defendant's arguments for dismissal are directed at these newly alleged violations as well.
This Labor Law claim arises from factual events about which the parties have little disagreement. On June 13, 2001, at approximately 10:30 a.m., while employed by Delaney
[FN2]
Construction Company, claimant was injured as he assisted in a project which involved lining old drainage pipes with plastic inserts. Delaney was under contract with the New York State Thruway Authority (hereinafter referred to as NYSTA) to clean and rehabilitate drainage culverts at 20 sites under the Thruway. As part of this contract, Delaney was to line or re-sleeve existing drainage pipes with plastic inserts (defendant's exhibit J). The NYSTA contracted with Harza Engineering to supply a resident engineer for construction inspection of the project. The resident engineer was Richard Warren, who acted as an agent of the State on this project. [*2]
Delaney began work on the project in the fall of 2000. Pursuant to NYSTA project specifications, it was recommended that the pipe lining was to be pushed into the existing drainage pipe{**2 Misc 3d at 933} (defendant's exhibits I and F, at 31). This was accomplished at various locations, pursuant to the contract, prior to the subject incident. At the Fort Plain site, where claimant was injured, the existing drainage pipe was located at a failing slope, which caused the existing culvert pipe to have an uplift from the bottom of 3

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