Opinion
# 2012-039-306 Claim No. 115633 Motion No. M-80839
05-22-2012
STAVESKI v. STATE OF NEW YORK
Synopsis
Claimants' motion for summary judgment on the issue of liability under Labor Law § 240 (1) is granted. Claimants' evidence established that defendant was the owner of the worksite where the accident occurred, claimant fell from elevated scaffolding while he was sandblasting a bridge and the safety equipment provided to claimant proved inadequate to prevent him from falling. Defendant submitted no evidence in opposition. Case information
UID: 2012-039-306 Claimant(s): HENRIQUE STAVESKI and IZABEL CAMARGO Claimant short name: STAVESKI Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115633 Motion number(s): M-80839 Cross-motion number(s): Judge: James H. Ferreira Sacks and Sacks, LLP Claimant's attorney: By: Devon Reiff, Esq. Pillinger Miller & Tarallo, LLP Defendant's attorney: By: Marc M. Pillinger Third-party defendant's attorney: Signature date: May 22, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this Labor Law action, claimants seek damages for injuries claimant Henrique Staveski (hereinafter claimant) sustained on July 17, 2008 when he fell from scaffolding while working at a construction site located on an overpass at Route 135 and Route 24 (the Hempstead Turnpike) in Nassau County. At the time of the accident, claimant was employed by P.S. Bruckel, Inc. (hereinafter Bruckel), the general contractor hired by the New York State Department of Transportation (hereinafter DOT) to paint and sandblast the bridge at this location. Discovery has been completed, and claimants now move for summary judgment pursuant to CPLR 3212 on the issue of liability under Labor Law § 240 (1). Defendant has not filed any opposition to the motion.
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2011]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50 [2011]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [2011]; Dorival v DePass, 74 AD3d 729, 730 [2010]).
In relevant part, Labor Law § 240 (1) 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."
This statue "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis omitted]) and "imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2006]). The purpose of Labor Law § 240 (1) "is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves" (Panek v County of Albany, 99 NY2d 452, 457 [2003]; see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [2004]), and the statute is to be liberally construed to effectuate its purpose (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). In order to establish liability under Labor Law § 240 (1), a claimant must prove both "that the statute was violated and that the violation was a proximate cause of injury" (Harris v City of New York, 83 AD3d 104, 108 [2011]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]).
In support of their motion, claimants have submitted claimant's deposition, in which he testified that he had been hired by Bruckel to sandblast and paint the bridge. He began his shift on July 17, 2008 around 9:00 or 10:00 p.m. Claimant put on a special uniform designed for sandblasting, which included a helmet, coverall, boots and gloves. He also put on a safety belt or vest that was equipped with a hook and line that he attached to a girder on the bridge. He climbed a ladder to reach the scaffolding, which was about 16 feet off the ground. The scaffolding was about 2½ feet wide and had no rails surrounding it. He had been sandblasting the bridge for about one hour when the accident occurred. The scaffolding was "shaking a lot" as he was sandblasting and he "was at the end of the scaffold and it was a very short amount of space, and in that shaking [he] couldn't stay on it" (Affirmation in Support, Exhibit 5 at 31). He fell backwards off the scaffolding and was injured. Claimant testified that the hook and line failed when he fell from the scaffold, explaining that his line was "hooked onto the steel, but the hook didn't close" (id. at 24). He noticed after the accident that the hook or clip was "totally open" (id. at 26). Claimant affirmed that the DOT inspector had seen how the hooks were being attached to the girders at the site and recalled hearing a DOT inspector tell the foreman that the hook could be attached to a steel girder. At the time of the accident, he had been doing painting and blasting work for more than ten years and was using the same type of equipment that he had used in past jobs.
Claimants also submitted the deposition of Leon Hung, a Senior Engineering Technician with DOT. In relevant part, Hung testified that, in this position, he worked at various construction sites on State-owned roadways and bridges. His duty with respect to the worksite on the date of the accident was to observe the sandblasting from a distance to ensure that it was contained. He also climbed the scaffold to check on the sandblasting work; Hung confirmed that there were no guardrails on the scaffolding. Hung was "[n]ot sure" whether the workers had been supplied a safety line, whether they had been tied off to anything and what kind of safety equipment they had been provided (Affirmation in Support, Exhibit 6 at 36-37). He testified that he prepared a daily report at the end of his shift on July 18, 2008. According to the report, the accident occurred at 11:30 p.m. on July 17, 2008; claimant was in the process of blasting when he fell to the ground.
In support of their motion, claimants also submitted an accident report stating that the accident occurred on July 17, 2008 at 11:45 p.m. and that claimant "was found on the ground, between the entryway and the ladder within the containment. It is unknow[n] whether the employee fell off the ladder or the scaffold" (Affirmation in Support, Exhibit 8). In addition, claimants submitted a copy of the contract between the State and Bruckel (Affirmation in Support, Exhibit 7).
The Court finds that claimants have made a prima facie showing of their entitlement to judgment as a matter of law on their Labor Law § 240 (1) cause of action. Claimants' evidence establishes that (1) defendant owned the worksite where the accident occurred, (2) claimant was standing on elevated scaffolding sandblasting the bridge when he lost his balance and fell approximately 16 feet to the ground, and (3) the scaffold lacked safety railings and that the safety equipment provided to claimant - a hook and line that attached to a bridge girder - proved inadequate to prevent claimant from falling. There is no evidence to suggest that the claimant's own actions or omissions were the sole proximate cause of the accident. Thus, claimants have demonstrated that the statute was violated and the violation was a proximate cause of claimant's injuries (see Silva v FC Beekman Assoc., LLC, 92 AD3d 754, 755 [2012]; Moran v 200 Varick St. Assoc., LLC, 80 AD3d 581, 582 [2011], lv dismissed 17 NY3d 756 [2011]; Madalinski v Structure-Tone, Inc., 47 AD3d 687, 687-688 [2008]). Defendant has submitted no evidence in opposition and has thus failed to raise a triable issue of fact sufficient to defeat claimants' entitlement to summary judgment.
Based upon the foregoing, claimants' motion for summary judgment on the issue of liability pursuant to Labor Law § 240 (1), M-80839, is granted.
May 22, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated December 28, 2011;
2. Affirmation in Support of Motion by Devon Reiff, Esq. dated December 28, 2011 with exhibits; and
3. Memorandum of Law in Support of Motion by Devon Reiff, Esq. dated December 28, 2011.