Opinion
# 2011-009-034 Claim No. 117813 Motion No. M-78596
12-13-2011
ALEBA v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
Synopsis
Claimant's motion seeking summary judgment on the issue of liability based upon his Labor Law Section 240(1) cause of action was granted. Case information
UID: 2011-009-034 Claimant(s): DENNIS ALLEN ALEBA Claimant short name: ALEBA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117813 Motion number(s): M-78596 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. THE ROTHSCHILD LAW FIRM, P.C. Claimant's attorney: BY: Martin J. Rothschild, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Sugarman Law Firm, LLP Paul V. Mullin, Esq., Of Counsel. Third-party defendant's attorney: Signature date: December 13, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim, claimant seeks damages for personal injuries suffered by him in an accident which occurred on October 16, 2009, when claimant was working on a construction project at a salt storage dome in Moravia, New York. Claimant has set forth three causes of action, based upon alleged violations of Labor Law §§ 200, 240 and 241(6). In this motion, claimant seeks an order granting him summary judgment as to liability on his cause of action alleging a violation of Labor Law § 240(1). The Court has considered the following papers in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2
Memorandum of Law (in support) 3
Attorney Affidavit in Opposition, with Exhibits 4
Memorandum of Law (in opposition) 5
Reply Affirmation, Reply Memorandum of Law 6,7
Based upon the claim and the papers submitted with this motion, including transcripts of deposition testimony from claimant and witnesses, certain undisputed facts have been established. At the time of this accident, claimant was employed as a mason by Omega Construction, which had entered into a contract with the State to essentially reinforce the concrete walls of a DOT salt dome in Moravia, New York. This project required that reinforced or new concrete walls would be constructed in front of the old walls.
This project necessitated the construction of building forms, and Omega Construction, apparently with input from claimant, decided to use "Symons Panels" for the walls of the forms. Although these Symons Panels are usually two-sided, the forms for this project were designed to be one-sided, without a back, due to the existing concrete wall. The forms were assembled on-site, and the panels were braced with 2x4s. Apparently, claimant was also involved in determing the manner in which the panels were to be braced, but they were assembled on-site by Michael Catherman and Joseph Evangelista, other employees of Omega Construction. The construction of the forms took approximately two weeks.
On the day of the accident, claimant was instructed to appear on-site and conduct the concrete pour. Claimant brought a five-foot scaffold and a concrete vibrator to the site and placed the scaffold as close as he could get it to the forms. Claimant and another worker, Jason Kinthiseng, worked from the top of the scaffold to conduct the pour.
As they were nearly finished with the pour on the first form, the form suddenly kicked out from its place and struck the scaffold. The scaffold then began to "teeter-totter" as a result of the form hitting it, and it moved away from the wall. Claimant and Jason Kinthiseng were either thrown from the scaffold or jumped. As he fell, claimant struck one of the bottom braces, while Mr. Kinthiseng somehow landed on his feet.
Another coworker, Michael Catherman, as well as Mr. Kinthiseng, both stated (in their deposition testimony) that the form kicked out without any warning, and that the form struck the scaffold, causing it to wobble and move.
John Lalik, employed by the New York State Office of General Services, was responsible for overseeing the construction work for the State on this project. Mr. Lalik was present on-site when the forms were assembled, and was also present on-site on the date of the concrete pour. Mr. Lalik, however, did not actually witness this accident, since he had gone outside to check on the consistency of the concrete. He was notified of the accident immediately after its occurrence. Mr. Lalik acknowledged in his deposition testimony that he had the authority to stop work on the site if he determined that there was a dangerous situation, but that he had not done so during the concrete pour.
As stated at the outset herein, claimant now moves for summary judgment as to the issue of liability on his cause of action asserted under Labor Law § 240(1). Defendants have opposed the motion, essentially contending that claimant was the sole proximate cause of this accident.
Labor Law § 240(1), commonly known as the "scaffold law", provides that "[a]ll contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The protection afforded by this statute is absolute and non-delegable, and applies when there is a "significant risk inherent in the particular task because of the relative elevation at which the task must be performed" and where "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for ... because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514).
To establish liability under Labor Law § 240(1), a claimant must demonstrate that the defendant violated the statute and that the violation proximately caused the accident (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280). A violation of the statute occurs when the scaffold or elevated platform is inadequate to protect workers against the elevation-related hazards encountered while performing a work assignment. If a violation of the statute is a proximate cause of the injury, the worker's own conduct, even if negligent, cannot be deemed to be a sole proximate cause of his injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, supra).
In this particular matter, there can be no question that claimant was engaged in the type of work intended to be covered by Section 240(1). In order to perform his task, claimant was required to stand on a scaffold approximately five feet above the ground, with the scaffold being placed right next to the concrete form into which claimant was pouring concrete. When the scaffold was struck by the form as it collapsed, claimant was faced with an elevation-related risk as he either fell or jumped from the scaffold. Furthermore, all of the witnesses to this accident concurred in that there were no safety harnesses or any other devices available to protect claimant from this elevation-related risk.
Accordingly, the Court finds that claimant was not provided with appropriate safety devices so placed, constructed and operated as to afford him adequate protection, while working at a height, under the circumstances and conditions of the work project (Howe v Syracuse University, 306 AD2d 891).
Defendant contends that the issue of whether claimant himself was the sole proximate cause of his accident at the very least presents a genuine issue of material fact which precludes summary judgment. However, after taking into consideration all of the evidence submitted on claimant's motion, with particular emphasis upon the transcripts of deposition testimony from the claimant and the other witnesses to the accident, no issue of material fact has been raised as to whether or not appropriate safety equipment was in place at the time of this accident. Clearly, the scaffold itself (even though it was brought onto the site by claimant) was inadequate to provide elevation-related protection, and no other safety equipment was available or present (Howe v Syracuse University, supra).
Furthermore, whether claimant fell from the scaffold, or whether he jumped in an attempt to avoid falling, does not preclude a determination that Section 240(1) was violated (Sherman v Piotrowski Bldrs., 229 AD2d 959).
In sum, therefore, claimant has established without any material contradiction that he was engaged in an activity protected by Labor Law § 240(1) as an employee of a contractor contracted by the defendants to perform repairs on a structure; that the required work involved an elevation-related risk; that he was not provided with appropriate safety devices; that his accident and resulting injuries were caused by an elevation-related risk; and that such injuries were proximately caused by the defendants' failure to provide adequate safety equipment.
Based on the foregoing, therefore, summary judgment on the issue of liability must be granted to claimant on his Labor Law § 240(1) cause of action.
Accordingly, it is
ORDERED, that Motion No. M-78596 is hereby GRANTED; and it is further
ORDERED, that the Chief Clerk of the Court of Claims is directed to enter an interlocutory judgment on the issue of liability in favor of the claimant on his Labor Law § 240(1) cause of action in accordance with this Decision and Order.
The Court will set this matter down for a trial limited solely to the issue of damages as soon as reasonably practicable.
December 13, 2011
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims