Opinion
# 2016-044-554 Claim No. 124380 Motion No. M-88368 Cross-Motion No. CM-88439
08-25-2016
MATTHEW SLEIGHT v. THE STATE OF NEW YORK
LEVENE GOULDIN & THOMPSON, LLP BY: John L. Perticone, Esq., of counsel PULOS and ROSELL, LLP BY: William W. Pulos, Esq., of counsel RAWLE & HENDERSON, LLP BY: Richard B. Polner, Esq., of counsel
Synopsis
Court grants claimant's motion to amend claim to add cause of action for Labor Law § 240 (2) and for summary judgment on the issue of liability pursuant to Labor Law §§ 240 (1) and (2), denies defendant's cross motion to dismiss those causes of action and the cause of action pursuant to Labor Law § 241 (6), and grants defendant's cross motion to dismiss Labor Law § 200.
Case information
| UID: | 2016-044-554 |
| Claimant(s): | MATTHEW SLEIGHT |
| Claimant short name: | SLEIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124380 |
| Motion number(s): | M-88368 |
| Cross-motion number(s): | CM-88439 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | LEVENE GOULDIN & THOMPSON, LLP BY: John L. Perticone, Esq., of counsel PULOS and ROSELL, LLP BY: William W. Pulos, Esq., of counsel |
| Defendant's attorney: | RAWLE & HENDERSON, LLP BY: Richard B. Polner, Esq., of counsel |
| Third-party defendant's attorney: | |
| Signature date: | August 25, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
After receiving permission from this Court to late file (Sleight v State of New York, UID No. 2014-044-519 [Ct Cl, Schaewe, J., Apr. 11, 2014]), claimant filed this claim on May 19, 2014 to recover for injuries allegedly received when he fell while working on the State Route 36 bridge over Loder Street (the Route 36 Project or the Project) in the City of Hornell, Steuben County. Defendant State of New York (defendant) eventually answered and asserted several affirmative defenses.
Defendant failed to timely file and serve an answer. Defendant moved for permission to file and serve a late answer and/or to compel claimant to accept the answer previously served and rejected (Motion No. M-85812) while claimant moved for a default judgment (Motion No. M-85811). The Court granted defendant's motion, denying claimant's motion as moot (Sleight v State of New York, UID No. 2015-044-504 [Ct Cl, Schaewe, J., Feb. 11, 2015]).
Claimant now moves (Motion No. M-88368) to amend his claim to assert a cause of action pursuant to Labor Law § 240 (2), and also moves for partial summary judgment pursuant to Labor Law §§ 240 (1) and 240 (2). Defendant opposes the motion and cross-moves for summary judgment (Cross Motion No. CM-88439) dismissing the claim in its entirety. Claimant replies and opposes the cross motion. Defendant replies to claimant's opposition to the cross motion, and was permitted by the Court to submit a sur-reply in opposition to Motion No. M-88368.
Claimant has also pleaded causes of action pursuant to Labor Law §§ 200 and 241 (6).
Facts
Defendant awarded a contract to Cold Springs Construction Company (Cold Springs) for the reconstruction of a number of bridges throughout upstate New York. Claimant was employed by Cold Springs on the Route 36 Project. The initial phase of the Project required demolition of concrete bridge decking of the northbound side of the bridge, while leaving intact the bridge beams and diaphragms. Claimant, Andrus and Joseph Brooks, project superintendent employed by Cold Springs, all consistently described the work being performed on the Project at the time of claimant's accident. The method of demolition used by Cold Springs was to insert planks between the lower flanges of the structural bridge beams to form a platform under the concrete decking. Cold Springs' employees placed tarps on the planks, and then used equipment to demolish the concrete decking which fell onto the tarps on the plank platform. Any debris that did not land on the tarp would be shoveled back onto the tarp by Cold Springs' employees. The corners of the tarp would then be connected to an excavator which would lift the tarp and collected debris and deposit it into a truck. Apparently this demolition method was used in order to prevent the fall of debris onto the railroad tracks and street below the bridge. The demolition work started at the north end of the bridge and moved south. Because Cold Springs did not have enough planks to construct the platform for the entire length of the bridge, the planks underneath the north end of the bridge where the demolition had been completed were removed and placed underneath the south end in advance of the continuing demolition.
The term "diaphragms" as used in this context was defined by Ryan Andrus (a senior engineering technician employed by defendant to inspect the Project) as transverse steel beams which connect the longitudinal structural bridge beams (Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Ryan Andrus taken Nov. 5, 2015 at 26-27). Unless otherwise indicated, the page numbers of deposition testimony shall refer to the page numbers printed on the transcript.
Id. at 30.
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 5.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Ryan Andrus taken Nov. 5, 2015 at 30; see also id., Exhibit I.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Ryan Andrus taken Nov. 5, 2015 at 31-32 and Deposition testimony of Joseph Brooks taken Dec. 22, 2015 at 20-21.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Joseph Brooks taken Dec. 22, 2015 at 11-12.
id. at 14.
Id. at 8-9.
Cold Springs had a Fall Protection Plan which was reviewed and approved by defendant, according to defendant's Construction Safety Coordinator Jason Nisbet. Defendant also required Cold Springs to list the employees trained to implement the Fall Protection Plan. Two of the Cold Springs' employees on that list were foreman George Redeye (claimant's direct supervisor) and Project Engineer Joseph Brooks. Cold Springs' employees wore safety harnesses and lanyards in some situations on the Project. Safety harnesses were not worn when the employees were working on the platform between two diaphragms (a bay), as the diaphragms and structural beams effectively acted as safety rails around the bay. Notably, however, both defendant's and Cold Springs' supervisory personnel on the site (as well as Cold Springs' employees) believed that a "six foot rule" was appropriate. Under this six foot rule, employees were required to wear safety harnesses when working on the platform closer than six feet to a "leading edge" (an edge of the platform not protected by a railing or other safety device). Kenneth Cartwright, a Cold Springs' employee, stated in his deposition that the employees were specifically told that if someone was working more than six feet from a leading edge they did not need to wear a harness.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Exhibit P.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Jason Nisbet taken Nov. 5, 2015 at 15-17.
Id. at 13-15.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Exhibit O.
See id., Exhibit H, a photograph taken by Andrus about five hours prior to claimant's accident. This photograph depicts Brooks and another Cold Springs' employee working on the Project, both of whom appear to be wearing harnesses and lanyards.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Kenneth Cartwright taken Dec. 21, 2015 at 12-13 and Deposition testimony of George Redeye taken Dec. 21, 2015 at 25-26; Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 8.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Christopher Giles taken Nov. 5, 2015 at 14-20.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of George Redeye taken Dec. 21, 2015 at 25.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Kenneth Cartwright taken Dec. 21, 2015 at 11.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of George Redeye taken Dec. 21, 2015 at 25 and Deposition testimony of Christopher Giles taken Nov. 5, 2015 at 14-20.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Kenneth Cartwright taken Dec. 21, 2015 at 11.
On May 10, 2013, the date of the accident, claimant was working as a laborer, cleaning concrete from the planked platform under the bridge decking. During the day of May 10, 2013, Project Engineer Brooks was assisting in the removal of the planks to the north of the demolition so they could be re-installed to the south. At some point in the day prior to claimant's fall, he and Project Engineer Brooks had a brief conversation. During the course of this litigation, Brooks executed an affidavit which stated:
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 10.
See Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Exhibit H. Exhibit H is a photograph which shows Brooks and another man. Andrus, who took the picture, testified that the photograph was taken on May 10, 2013 prior to the time of the accident. Brooks testified that the photograph depicted himself and another man performing plank removal (Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Ryan Andrus taken Nov. 5, 2015 at 27 and Deposition testimony of Joseph Brooks taken Dec. 22, 2015 at 9).
Brooks' affidavit was originally submitted by defendant in support of defendant's motion for permission to file and serve a late answer and/or to compel claimant to accept the answer previously served and rejected (Motion No. M-85812) after defendant's counsel failed to timely file and serve an answer to the claim.
6. On May 10, 2013 and prior to the incident, I inspected the wooden deck and found that there was approximately ten feet of space between [claimant's] work area and the edge of the wood deck. I asked [claimant] if he had enough space in which to work so he could avoid working near the edge of the deck. He indicated that he had sufficient space in which to work. The work being performed by [claimant] at the time of his incident did not call for him to work at or near the edge of the wood deck.
7. At no time during his work on [the Project] was I aware of [claimant] using a safety harness that Cold Spring Construction made available on the project."
Affidavit of Joseph Brooks, sworn to Oct. 2, 2014, in Support of Motion No. M-85812, ¶¶ 6-7, submitted in Support of Motion No. M-88368.
Brooks stated during his deposition that claimant was standing north of a diaphragm and was in an area with an unprotected leading edge (where the planking had been partially removed between diaphragms) when they spoke. Brooks stated that he did not hear anyone (presumably including Brooks himself) tell claimant to wear a safety harness the day of the accident. In his affidavit, claimant stated (without contradiction anywhere in the evidence submitted to the Court) that he was not wearing a safety harness at the time of his conversations with Brooks.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Joseph Brooks taken Dec. 22, 2015 at 24, 28.
Id. at 19.
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 13.
Immediately prior to claimant's fall, he and Redeye were clearing debris from a fully enclosed bay where the planking was all still in place. Kenneth Cartwright was working nearby. It is undisputed that none of them were wearing harnesses/lanyards. Sleight told Redeye he needed to cross over the diaphragm into the bay to the north, where the planks had been partially removed, in order to remove some accumulated debris. Redeye testified: "[claimant] said he was going to jump over and I said, '[i]f you stay next to the joint you're safe because that's within the six foot, but' I said, '[i]f you go any further you have to put your harness on.' " Redeye acknowledged that claimant was not wearing a safety harness at the time. Redeye bent over to continue debris removal in his bay, and did not see claimant fall, nor did anyone else.
Id., ¶ 10; Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of George Redeye taken Dec. 21, 2015 at 26 and Deposition testimony of Kenneth Cartwright taken Dec. 21, 2015 at 13.
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 16.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of George Redeye taken Dec. 21, 2015 at 25.
Id. at 26.
id. at 32.
Counsel for defendant does not dispute that there were no witnesses to the fall (Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016, in Opposition to Motion, ¶ 12).
Claimant said that the planking in the bay he entered ended 8 to 10 feet north of the diaphragm. The Daily Work Report prepared by Andrus detailing the accident states: "[d]ue to the skew of the bridge the length of the decking to the open edge was approximately 7 [feet] on the short side and 12 [feet] on the long side." Claimant further recounted:
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 15.
Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016, in Opposition to Motion, Exhibit B.
I believed that I could carry out the job of clearing the debris without falling and that I would not have to work close to the edge of the platform. . . . In order to clear the concrete debris along the I-beams and under the diaphragm, I had to move a board. I pulled at the board, and it unexpectedly came loose. I lost my balance, stumbled backward and off the edge of the unprotected planked platform. I fell more than 20' to the down [sic] to the road.
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶¶ 16-18.
Claimant said that he had worn a safety harness and lanyard at the beginning of the Project, always wore one when instructed to, and also when he thought he was required to do so. Redeye stated that to his knowledge, claimant never refused to wear a safety harness.
Id., ¶ 6.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of George Redeye taken Dec. 21, 2015 at 28.
After the accident, OSHA issued a violation to Cold Springs for allowing an employee to work "on a bridge over 6 feet above the lower level with an unprotected side or edge and not protected from falling by use of guardrail systems, safety net systems, or personal fall arrest systems." Cold Springs ultimately admitted to a violation and took corrective action, including installing protective barriers at the unguarded leading edges of the planks.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Exhibit Q at 6.
See id., Exhibit M and Exhibit R at 1.
Claimant's Motion to Amend the Claim
Claimant's motion to amend the claim does include a copy of the proposed amended claim (the Proposed Amended Claim), contrary to defendant's contention. Claimant denotes this as a second amended claim, having submitted what purports to be an amended and filed claim, dated February 21, 2014 (the Proposed Claim), as Exhibit A to the motion. However, the Proposed Claim was never filed as a pleading with the Clerk of the Court of Claims, although it had been submitted as a proposed claim in claimant's motion for permission to late file. The claim eventually filed with the Court of Claims is dated May 8, 2014 (the Filed Claim), and is clearly the claim served upon defendant, as that is the document submitted with both defendant's opposition and cross-motion papers (Exhibit H to both). The differences between the Proposed Claim and the Filed Claim are:
id., Exhibit F.
1) the Proposed Claim alleges violations of Labor Law § 240 (among other things) without specifying a subsection, whereas the Filed Claim specifies violations of Labor Law § 240 (1); and
2) the Proposed Claim sets forth violations of specific sections of the State Industrial Code, whereas the Filed Claim does not.
The omission of the sections of the State Industrial Code is undoubtedly due to the Court's determination in the Decision and Order granting permission to file and serve a late claim that most of the cited sections of the Industrial Code were inapplicable to the set of facts surrounding claimant's fall (Sleight, UID No. 2014-044-519 at 4-5).
The Proposed Amended Claim shows changes made to the Proposed Claim, rather than to the Filed Claim. Those changes are solely to assert causes of action pursuant to Labor Law §§ 240 (1) and (2). Because a cause of action pursuant to Labor Law § 240 (1) was actually made in the Filed Claim, the only issue is whether the Court should grant the request to add a cause of action for Labor Law § 240 (2). Denying the motion on the basis that the Proposed Amended Claim seeks to amend the Proposed (unfiled) Claim rather than the Filed Claim would be elevating form over substance in light of the de minimis differences between the Proposed Claim and the Filed Claim, as it is readily apparent what claimant seeks to amend (see Rodriguez v State of New York, 153 Misc 2d 363 [Ct Cl 1992]). Accordingly, the Court will consider claimant's motion as a request to add a cause of action to the Filed Claim alleging violations of Labor Law § 240 (2), in that the work platform from which claimant fell constituted a scaffold, was more than 20 feet above ground level and was not equipped with a safety rail.
CPLR 3025 (b) provides that "[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" (see also Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). The determination of whether to grant leave to amend a pleading is left to the sound discretion of the Court (Krichmar v Krichmar, 42 NY2d 858, 860 [1977]). In addressing an application to amend, the Court should consider whether there would be any prejudice to the opposing party; the effect, if any, an amendment would have on the orderly prosecution of the action; whether there was undue delay in seeking the amendment; and whether the proposed amendment is palpably improper or insufficient as a matter of law (see e.g. Nunez v State of New York, UID No. 2002-030-525 [Ct Cl, Scuccimarra, J., June 26, 2002]). Leave should be denied in situations where the proposed amendment lacks merit as a matter of law (see Bastian, 8 AD3d at 765).
Defendant's opposition to claimant's motion to amend the claim is based on its assertion that claimant's actions were the sole proximate cause of the accident, that claimant has provided no excuse for the delay in moving to amend, that defendant is prejudiced by claimant's failure to initially claim that the work area was a scaffold such that the provisions of Labor Law § 240 (2) would apply, and that the cause of action lacks merit because the work area was not actually a scaffold.
Defendant's contention that the motion to amend should be denied because claimant's actions were the sole proximate cause of the accident is a factually specific issue more appropriate to the question of summary judgment, rather than to the motion to amend. Accordingly, that contention will be discussed in the context of the motion and cross-motion for summary judgment.
Labor Law § 240 (2) states in pertinent part: "Scaffolding or staging more than twenty feet from the ground . . . shall have a safety rail of suitable material." The Filed Claim alleges that claimant was working at an elevated height, that the location of claimant's fall was unprotected by safety rails, and that claimant fell approximately 30 feet to the ground. Claimant's Bill of Particulars avers in pertinent part: "[t]he accident was caused by [defendant's] negligence and violations of the New York State Labor Law sections 200, 241 (6) and 240 in that [defendant]: . . . failed to provide a safety railing or barrier on the elevated work platform."
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Exhibit D at 1-2.
Clearly, the proposed amendment adding of a cause of action for violation of Labor Law § 240 (2) entails no new factual allegations, as those factual allegations were made in the Filed Claim itself. Moreover, defendant has been on notice that claimant specifically intended to pursue a theory of violation of Labor Law § 240 (2) since (at the very latest) service of the Bill of Particulars dated August 19, 2015, only slightly over one year after the claim was filed. The issue of the failure to provide a safety railing or barrier was addressed at claimant's deposition and at the depositions of all present at the time of the accident, as well as the safety officers of both defendant and claimant's employer. Claimant's employer was cited by OSHA for failure to provide safety rails on an elevated working surface. In light of the foregoing, defendant cannot reasonably claim prejudice or surprise (Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431 [1st Dept 2012]; see also Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]).
Id., Exhibit Q.
In assessing the merit of a proposed amendment to a pleading, the movant need only make an evidentiary showing sufficient to support the proposed amendment, and is not required to meet the standard necessary for summary judgment (Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d 987, 988 [3d Dept 2007]). In its opposition to the motion, defendant submitted the affidavit of Michael Cronin, M.S., P.E. Cronin asserts that the facts and circumstances of this claim do not support a cause of action for a violation of Labor Law § 240 (2). In response to this affidavit, claimant submitted the affidavit of John Coniglio, who averred that the planking upon which claimant was working was a scaffold under the various provisions of law defining that term. Coniglio further opines that the failure to provide a safety rail at the unprotected edge of the work platform (planking), when combined with the "six-foot policy" improperly utilized by claimant's employer and the direction given by claimant's supervisor George Redeye (all of which are set forth in the affidavit of claimant and the deposition transcripts submitted with claimant's motion, rather than being raised for the first time in Coniglio's affidavit), constitutes a clear violation of Labor Law § 240 (2).
Defendant's counsel objected to the Court's consideration of Coniglio's affidavit, claiming that the affidavit was being impermissibly used at the reply stage in order to meet claimant's prima facie burden of proof on the motion. Claimant's counsel correctly pointed out that it is appropriate for a moving party to submit evidence, including expert witness affidavits, to counter opposition to a summary judgment motion, citing New York Mun. Ins. Reciprocal v International Truck & Engine Corp. (121 AD3d 1352 n 1 [3d Dept 2014]) and Ioele v Wal-Mart Stores (290 AD2d 614 [3d Dept 2002]). While the Court finds that claimant's reply papers, including the expert affidavit, properly countered defendant's opposition to the motion to amend and for summary judgment, any potential prejudice has clearly been obviated by the Court allowing defendant to submit sur-reply papers (see Ioele, 290 AD2d at 615).
Although claimant did delay almost two years after filing the claim in making this motion to amend his claim, no note of issue has been filed, nor has a date for trial been scheduled. In light of the absence of prejudice or surprise to defendant, the instruction in CPLR 3025 that leave to amend shall be freely given, and the evidentiary submissions which are more than adequate to establish that the proposed amendment is not devoid of merit, claimant's motion to amend the claim to assert a cause of action for a violation of Labor Law § 240 (2) is granted.
Defendant's counsel's contention that claimant's counsel had certified that discovery was complete (Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016 in Opposition to Motion, ¶¶ 54, 78) is false.
Cronin's affidavit is rife with factual inaccuracies which will be discussed in the context of claimant's summary judgment motion, infra at 20-24. In any event, the assertions contained therein lend nothing to defendant's argument that the proposed amendment lacks merit.
Claimant's Motion for Summary Judgment Pursuant to Labor Law §§ 240 (1) and (2)
The movants on this motion and cross-motion for summary judgment are required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the respective movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
Labor Law § 240 (1) "requires owners and contractors to provide adequate safety devices to protect workers against elevation-related hazards" (Jackson v Heitman Funds/191 Colonie LLC, 111 AD3d 1208, 1209 [3d Dept 2013]). In other words, the statute "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" (Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]).
As previously set forth, Labor Law § 240 (2) states in pertinent part: "Scaffolding or staging more than twenty feet from the ground . . . shall have a safety rail of suitable material." As the Appellate Division, Third Department has explained, Labor Law § 240 (1) "states when and by whom devices must be provided and then details in subdivisions (2) and (3) more specific requirements" (Bryant v General Elec. Co., 221 AD2d 687, 689 [3d Dept 1995]).
Claimant has introduced evidence which shows that he was provided with a safety harness and lanyard for use on the job site. Claimant routinely worked shoveling and removing debris on a wooden platform of planks designed to catch the demolition debris from the bridge deck above it. This work was primarily conducted on the platform in areas known as bays which were surrounded by structural beams and diaphragms, and at the time of claimant's fall the platform was located approximately 25 feet over the ground below. It is uncontroverted that on that job site it was a practice and policy not to wear safety harnesses while working within those bays, because the safety harnesses would catch and hamper the work. Shortly before claimant's fall, Cartwright, Redeye and claimant were working in one of those bays and none of them were wearing a safety harness. At some point that day, claimant had been observed by the Senior Engineer on the Project, Brooks, in an area exposed to a leading edge which had no safety railing or other protection. Claimant stated he did not wear a safety harness that entire day, nor was he wearing one when he spoke to Brooks, neither of which statements have been disputed. Brooks stated he never saw claimant wearing a safety harness on the job, and heard no one instruct him to do so on the date of the accident. Before claimant entered into the area with an unprotected leading edge Redeye stated: " 'If you stay next to the joint you're safe because that's within the six foot, but . . . if you go any further you have to put your harness on.' " Redeye acknowledged that if a person under his supervision was not wearing a harness when they should be, it was his responsibility to instruct them to wear one, and that it was also his responsibility to insure compliance with the Fall Protection Plan. There is no testimony which indicates that claimant intentionally went closer than six feet to the leading edge, or that he was in fact closer than six feet to the edge when he initially lost his balance and fell. It is undisputed that the leading edge did not have any type of safety railing. All the testimony elicited indicates that claimant never refused to wear a safety harness or failed to comply with safety instructions.
Affidavit of Matthew Sleight, sworn to Apr. 5, 2016, in Support of Motion, ¶ 10.
id., ¶ 13.
Affidavit of Joseph Brooks, sworn to Oct. 2, 2014, in Opposition to Motion No. M-85811, ¶ 7, submitted in Support of Motion No. M-88368.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition testimony of Joseph Brooks taken Dec. 22, 2015 at 19.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition of George Redeye taken Dec. 21, 2015 at 25.
Id. at 29.
Based upon the foregoing undisputed evidence, the Court finds that when he fell, claimant was working, without a safety harness and with the implicit approval of his superiors in doing so, on a platform more than 20 feet from the ground which was unprotected by a safety rail. Claimant has clearly set forth a prima facie case that his injuries were caused by violations of Labor Law §§ 240 (1) and (2).
"Once the plaintiff makes a prima facie showing[,] the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence - enough to raise a fact question - that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004] citing Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]). Defendant's arguments appear to be that claimant is not credible, that the provision of proper safety devices on the project bars recovery under § 240 (1), that claimant was a recalcitrant worker refusing to use a safety harness as directed, that the platform was not a scaffold such that safety rails were necessary, that the platform was in the process of being removed and thus there was no requirement that a safety rail be present, and that claimant's counsel is somehow misrepresenting the facts.
Claimant's Credibility
Defendant's primary argument, that claimant is not credible and asserted "gross misrepresentations of fact in support of his claim," is wholly unsupported by the facts. As examples of these "gross misrepresentations" counsel cites claimant's affidavit in support of his motion to late file, in which claimant states: "[a]t the time of my fall . . . I did not have adequate scaffolding, hoists, stays, ladders, slings, hangers, pulleys, blocks, braces, irons, ropes and other safety devices to give me . . . proper protection on the [work site]." As claimant's counsel has noted, this statement is accurate. It is undisputed that claimant was not wearing a safety harness at the time of his fall, with the full knowledge of his supervisor. It is also undisputed that the elevated platform upon which claimant was working had an edge unprotected by any sort of safety rail.
Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016, in Opposition to Motion at 4.
Id., Exhibit F, ¶ 11.
Defendant's counsel continues his enumeration of these purported "falsehoods" by noting that in a "statutory hearing" claimant "again swore that there were no safety devices available" by means of the following testimony:
It appears that counsel for defendant has confused the terminology and procedures of the General Municipal Law governing actions against municipalities with the Court of Claims Act governing this action against the State. Pursuant to General Municipal Law § 50-h, a municipal defendant has a right to conduct a pre-action oral examination of the plaintiff. There is no similar provision in the Court of Claims Act. Instead, and after the filing of a claim, the State may conduct an oral examination before trial of the claimant pursuant to CPLR 3107. The Court notes that even though the transcript of claimant's testimony taken on Aug. 19, 2014 (attached as Exhibit I to defendant's opposition papers) was entitled "50-H [sic] hearing," the testimony was taken after the filing and service of the claim and clearly constitutes an examination before trial.
Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016, in Opposition to Motion, ¶ 20.
Q: Okay. Did you ever make a complaint specifically that there was no - there was no railing or protection along the edge of the planks?
A: No.
Q: At any time did you request a harness with a life - with a lanyard to use while you were working on the project?
A: No.
Q: Do you know whether or not Cold Spring had harnesses and lanyards available for employees?
A: Not that I know. They didn't have any right there, no."
Id., Exhibit I at 39-40.
These statements are also accurate. There is no evidence that claimant ever complained about the lack of a safety rail. However, he was under no obligation to do so. Claimant did not request a harness, because he had already been provided with one, and it is uncontroverted that he wore it whenever he was instructed to do so. Defendant's counsel concludes that the final statement means that claimant denied the existence of harnesses and lanyards at the Project. A more reasonable interpretation of claimant's statement, in light of all of the evidence introduced, is that no harness was available to claimant "right there." Certainly these statements, taken out of context by defendant's counsel, are vastly insufficient to support allegations of "gross misrepresentations of fact" which should require denial of claimant's motion for summary judgment. The Court finds that claimant's testimony is generally consistent with the evidence submitted, and does not call his credibility into question such that it would be considered incredible as a matter of law and warrant a denial of his motion for summary judgment solely upon that ground.
Defendant's counsel argument that in advancing this interpretation of claimant's testimony, claimant's counsel is "perverting sworn testimony" is unpersuasive at best, and is in fact a perversion of claimant's counsel's argument and representations.
Safety Devices on Site - Sole Proximate Cause
In support of its argument that the presence of appropriate safety devices (harnesses and lanyards) on site bars claimant's recovery under 240 (1), defendant quotes Gallagher v New York Post, (14 NY3d 83, 88 [2010]):
[l]iability under section 240 (1) does not attach when the safety devices that [claimant] alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [claimant] knew he was expected to use them but for no good reason chose not to do so, causing an accident.
Affirmation of Richard B. Polner, dated Apr. 29, 2016, in Opposition to Motion, ¶ 57.
However, if a defendant fails to submit evidence that claimant knew that he was expected to use a safety device at the time the accident occurred, then the claimant's actions cannot constitute the sole proximate cause of the accident (Kin v State of New York, 101 AD3d 1606 [4th Dept 2012]). Claimant knew he was expected to wear a harness if he was working within six feet of an unprotected edge. It is undisputed that the area he was working in was 7 to 12 feet from an unprotected edge. The evidence submitted clearly established that claimant was not expected to wear a safety harness under those circumstances. Brooks observed claimant working in such an area without a harness and did not instruct him to do so. Redeye told claimant he had to put on a harness only if he went within six feet of the edge. Moreover, Redeye "observed, facilitated and participated in" requiring the use of the harnesses only when work was being performed within six feet of a leading edge (Kuhn v Camelot Assn., Inc., 82 AD3d 1704, 1706 [4th Dept 2011]). Claimant cannot be held to be the sole proximate cause of his accident where he was following the example of his coworkers and, more importantly, was acting with the approval of his supervisor (see Rico-Castro v Do & Co N.Y. Catering, Inc., 60 AD3d 749 [2d Dept 2009]). Clearly this is not a situation where claimant knew he was expected to use a harness under the circumstances in which he was working and disregarded the instructions. The presence of safety harnesses on site is inapplicable and not a basis for denial of claimant's summary judgment motion where claimant had reason to believe that he was neither expected nor required to wear one at the time of his accident.
Recalcitrant Worker
Defendant next argues that it is entitled to assert the "recalcitrant worker" defense. In support of this argument, counsel argues that claimant was specifically instructed by Redeye to wear a safety harness and wilfully refused to do so. He further notes that claimant had previously been instructed in the proper use of safety devices. It is accurate (and claimant does not dispute) that claimant was generally instructed to use a safety harness in hazardous locations. However, the evidence clearly shows, without contradiction (other than the completely unsubstantiated arguments by defendant's counsel) that it was a custom and practice at the work site not to wear harnesses in the bays when surrounded by the beams and diaphragms, and also in locations farther than six feet from an unprotected leading edge. It is also undisputed that Brooks saw claimant in a bay with a leading unprotected edge while not wearing a safety harness but did not issue any safety-related instructions. Moreover, the Court does not agree with defendant's counsel's tortured interpretation that Redeye specifically instructed claimant to don a harness prior to crossing the diaphragm into the bay where he fell. Instead, the plain and obvious meaning of Redeye's statement was that claimant could cross the diaphragm without donning a harness as long as he was not within six feet of the leading edge. Claimant did not intend to go within six feet of the leading edge, and in fact there is no evidence that he was closer than six feet when he initially fell. Defendant's attempt to interpose the recalcitrant worker defense is simply unsupported by the facts and does not raise a question of fact necessitating a trial of the issues. The Court finds that claimant was not a recalcitrant worker as a matter of law.
See the affidavit of Cold Springs Safety Officer John Clancy in which he states summarily: "[p]ursuant to the employee handbook, [claimant] was aware that when he was working in a hazardous work area, he was required to wear a harness and lanyard" (Affidavit of John Clancy, sworn to Oct. 8, 2014 [Defendant's Cross Motion, Exhibit O], ¶ 7). This broad statement conveniently overlooks the undisputed fact that Cold Springs supervisors viewed hazardous work areas requiring harnesses as only including areas within six feet of an unprotected edge.
Affidavit of John L. Perticone, Esq., sworn to Apr. 6, 2016, in Support of Motion, Deposition Testimony of George Redeye taken Dec. 21, 2015 at 24-25 and Deposition Testimony of Christopher Giles taken Nov. 5, 2015 at 14-20. See also Affirmation of Richard B. Polner, Esq., dated Apr. 22, 2016, in Support of Cross Motion, Exhibit Q (Deposition Testimony of Jamie Palmer taken Dec. 21, 2015 at 40).
Interestingly, Cronin (defendant's expert) contradicts defendant's argument, stating: "Without direction or instruction from his foreman . . . [claimant] crossed over a bridge diaphragm onto a portion of the catch platform where there was an exposed and unprotected edge" (Affidavit of Michael Cronin, sworn to Apr. 22, 2016, in Support of Cross Motion, ¶ 9). Obviously, this too is an inaccurate assessment of the exchange between claimant and Redeye.
The Work Platform as Scaffold
By means of its expert, Cronin, defendant attempts to argue that the work platform was not a scaffold, describing it as a "niche claim" based upon "the bald, baseless assertion by [claimant's] counsel that the structure upon which [c]laimant was working at the time of the incident was likened to a scaffold." Defendant posits that the platform was used to prevent "falling debris and not to serve as an elevated work platform," citing Olsen v Pyramid Crossgates Co. (291 AD2d 706 [3d Dept 2002]). Defendant's argument is highly disingenuous at best. The Olsen case involved a situation where a worker who was standing on a ladder then stepped onto a plywood platform designed to support duct work. By contrast, the work platform involved in this Project necessitated that workers step onto it, and in fact crawl upon it beneath the concrete decking in order to place the tarps to catch the concrete debris during demolition. After a section of concrete was demolished, the workers had to again venture onto the platform in order to shovel any debris which had missed the tarp, as well as to use the loops on the tarp to attach the tarp to equipment for its removal. This method of debris catchment and removal simply would not work without the workers entering onto the platform to perform these tasks. As stated by claimant's expert Coniglio in opposition to Cronin's assertion:
Affirmation of Richard B. Polner, Esq., dated June 24, 2016, in Further Opposition to Motion, ¶ 3.
Affirmation of Richard B. Polner, Esq., dated Apr. 29, 2016, in Opposition to Motion, ¶ 50.
Affirmation of Richard B. Polner, Esq., dated June 24, 2016, in Further Opposition to Motion,¶ 25.
This structure was certainly put in place to catch falling debris, but equally, since the method [Cold Springs] selected would not work otherwise, it envisioned and required the entry of employees on to the deck to perform necessary tasks. The use of the catch platform by employees as a work platform means that the structure is deemed to be a scaffold as that term is defined by the New York State Industrial Code at § 23-1.4 (45) and OSHA at 29 CFR § 1926.450 (b). Also of note is [Industrial] Code Rule § 23-1.19 (a), which states that: "Catch Platforms shall not be used as working platforms or for the storage of materials." In order to place workers on the deck, it must conform to the requirements of a scaffold since a catch platform does not. The platforms on this [P]roject were used for working decks or scaffolds and lacked necessary protective railings as required by the Industrial Code § 23-5.1 (j).
Industrial Code § 23-1.4 (45) defines a scaffold as "[a] temporary elevated working platform and its supporting structure including all components."
Affidavit of John Coniglio, sworn to May 10, 2016, in Further Support of Motion, ¶ 12. As is relevant in this situation, Industrial Code § 23-5.1 (j) (1) provides that "[t]he open sides of all scaffold platforms, except [any scaffold platform with an elevation of not more than seven feet] . . . shall be provided with safety railings constructed and installed in compliance with this Part (rule)."
The Court finds as a matter of law that the platform in use to catch the demolition debris was a scaffold, as it clearly met the definition of a scaffold as set forth in 12 NYCRR § 23-1.4 (b) (45). Accordingly, since it was elevated more than seven feet above the ground, the scaffold was obviously required to be protected by safety railings in compliance with 12 NYCRR § 23-5.1 (j).
Cronin attempts to counter this requirement with the bizarre argument that because the platform ran the entire width of the overpass it fell "within the exception of Labor Law 240(2) with respect to the erection of railings." This appears to be a reference to the exception in Labor Law § 240 (2) which provides that railings are not necessary where the scaffolding is located entirely within the interior of a building and covering the entire floor space therein. Obviously, the work platform in this instance was not located inside a building and the exception is inapplicable.
Affidavit of Michael Cronin, sworn to Apr. 29, 2016, in Opposition to Motion, ¶ 17.
Cronin finally argues that no railing was required because the platform was in the process of being removed, stating that "[i]t would not be the custom and practice with the industry of bridge construction to erect a railing at an exposed edge of such a platform during the course of removal . . . . Instead . . . the Industrial Code provides for alternative safety devices to be utilized in the instance of an exposed edge, specifically harnesses and lanyards." Cronin cites no authority for these statements. His argument overlooks the fact that the platform was being only partially dismantled when claimant crossed the diaphragm. Moreover, this partial dismantlement method was being used during the duration of the Project as a means of keeping ahead of the demolition due to having insufficient numbers of planks to extend the entire length and width of the bridge. To take Cronin's argument to its logical limits, no safety railing would ever have been required at the leading edge which was being dismantled, as it would be in that state for the entire duration of the Project. Obviously this is in direct contravention of the intent of the statute, and such an interpretation would simply be illogical.
Id., ¶ 18-19.
Defendant has failed to produce any evidence raising a question of fact that there was no statutory violation. As previously set forth, the work platform was a scaffold as a matter of law. The lack of appropriate safety railings, in light of the platform's height of 20 feet over the ground, constituted a statutory violation as a matter of law. Defendant has raised no issues which generate a plausible view of the evidence that there was no statutory violation. Moreover, claimant cannot be blamed for failing to wear his harness in light of the practice and policy on the job site, in which his specific actions were both implicitly and explicitly endorsed by his supervisors. The Court finds as a matter of law that claimant's actions were not the sole cause of the accident, nor was claimant a recalcitrant worker. Claimant's motion for summary judgment on both the Labor Law §§ 240 (1) and (2) causes of action is granted. Defendant's cross motion to dismiss those causes of action is denied as moot.
Defendant's Cross-Motion to Dismiss Labor Law § 200 Cause of Action
Defendant's motion to dismiss claimant's cause of action pursuant to Labor Law § 200 is not opposed by claimant, and is therefore granted.
Affidavit of John L. Perticone, sworn to May 17, 2016, in Opposition to Cross Motion, ¶ 9.
Defendant's Cross-Motion to Dismiss Labor Law § 241 (6) Cause of Action
The basis for claimant's cause of action alleging a violation of Labor Law § 241 (6) was an alleged violation of Industrial Code § 23-1.7 (b) (2) (i) and (ii). Defendant's cross motion to dismiss this cause of action argues that Industrial Code § 23-1.7 (b) (2) (i) is inapplicable because the bridge work was taking place less than 30 feet above ground. Industrial Code § 23-1.7 (b) (2) (i) states: "[a]pproved safety belts shall be provided for and used by persons employed at elevations greater than 30 feet above land or water during bridge or highway overpass construction or at any elevation during structural or construction work performed over highways or railroads open to public traffic."
Affidavit of Michael Cronin, sworn to Apr. 29, 2016 in Opposition to Motion, ¶ 11.
Claimant counters that this work was taking place over a railroad, and therefore the code provision is applicable. Andrus, the State's inspector, testified in his deposition that the work being done on May 10, 2013, the date of the accident, was taking place within the right-of-way of Norfolk Southern Railroad. Defendant's contention that this provision of the Industrial Code is inapplicable is unavailing.
Affirmation of Richard B. Polner, Esq., dated Apr. 22, 2016, in Support of Cross Motion, Exhibit C (Deposition Testimony of Ryan Andrus taken Nov. 5, 2015) at 38-39.
Industrial Code § 23-1.7 (b) (2) (ii) pertains to the use of scaffolding as an alternative protective device to safety harnesses on bridge construction, and requires that "[s]uch scaffolds . . . shall be installed and maintained at all times when persons are working except when such safety protection would interfere with the placement of structural members or assemblies, in which case approved safety belts shall be worn." Defendant moves to dismiss the Labor Law § 241 (6) cause of action based upon a violation of this section on the ground that safety harnesses were available for claimant's use. However, defendant has not provided any evidence that the exception contained in Industrial Code § 23-1.7 (b) (2) (ii) - that the safety railing would have interfered with placement of structural members or assemblies - was applicable at the time of claimant's fall. Consequently, the scaffolding upon which claimant was working was not installed or maintained in accordance with the Industrial Code requirement that it have appropriate safety railing.
Claimant having raised at the very least triable issues of fact, defendant's cross motion to dismiss claimant's Labor Law § 241 (6) cause of action is denied.
Conclusion
In conclusion, claimant's motion to amend his claim to assert a cause of action pursuant to Labor Law § 240 (2) is granted. Claimant's motion for summary judgment on his Labor Law §§ 240 (1) and (2) causes of action is granted, and defendant's cross motion to dismiss those causes of action is denied as moot. Defendant's cross motion to dismiss claimant's Labor Law § 200 cause of action is granted. Defendant's cross motion to dismiss claimant's Labor Law § 241 (6) cause of action is denied.
August 25, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion and defendant's cross motion: 1) Notice of Motion filed on filed on April 8, 2016; Affidavit of John L. Perticone, Esq., sworn to on April 6, 2016, and attached exhibits A - R; Affidavit of Matthew Sleight, sworn to on April 5, 2016; Affidavit of Joseph Brooks, sworn to on October 2, 2014; Deposition Testimony of Ryan Andrus taken on November 5, 2015; Deposition Testimony of Jason Nisbet taken on November 5, 2015; Deposition Testimony of George Redeye taken on December 21, 2015; Deposition Testimony of Joseph Brooks taken on December 22, 2015; Deposition Testimony of Christopher Giles taken on November 5, 2015; Deposition Testimony of Jeffrey Younger taken on December 22, 2015; Deposition Testimony of John Clancy taken on December 22, 2015; Deposition Testimony of Kenneth Cartwright taken on December 21, 2015; Letter to the Court of John L. Perticone, Esq., dated May 17, 2016, including a second, more legible copy of the Affidavit of Joseph Brooks, sworn to on October 2, 2014; Complete Deposition Testimony of Christopher Giles taken on November 5, 2015, as subsequently requested by the Court; Memorandum of Law dated April 5, 2016. 2) Notice of Cross Motion filed on April 26, 2016; Affirmation of Richard B. Polner, Esq., dated April 22, 2016, and attached exhibits; Affidavit of Michael Cronin sworn to on April 22, 2016. 3) Affirmation in Opposition to claimant's motion of Richard B. Polner, Esq., dated April 29, 2016, and attached exhibits; Affidavit of Michael Cronin, sworn to on April 29, 2016. 4) Reply Affidavit of John L. Perticone, Esq., sworn to on May 17, 2016; Affidavit of John Coniglio, sworn to on May 10, 2016; Reply Memorandum dated May 17, 2016. 5) Affidavit in Opposition to defendant's cross motion of John L. Perticone, Esq., sworn to on May 17, 2016; Affidavit of John Coniglio, sworn to on May 10, 2016; Memorandum of Law dated May 17, 2016. 6) Letter of Richard B. Polner, Esq., to the Court dated May 24, 2016; Letter in Reply of John L. Perticone, Esq., to the Court dated May 26, 2016; Letter of Richard B. Polner, Esq., to the Court dated June 6, 2016; Court's letter to the parties dated June 7, 2016. 7) Reply Affirmation of Richard B. Polner, Esq., dated June 17, 2016, and attached exhibits; Affidavit of Michael Cronin, sworn to on June 17, 2016. 8) Affirmation of Richard B. Polner, Esq., in further opposition to claimant's motion dated June 24, 2016 and attached exhibit; Affidavit of Michael Cronin, sworn to on June 17, 2016.
Filed Papers: Claim filed on May 19, 2014; Verified Answer filed on September 5, 2014.