Claimant's motion for partial summary judgment on liability granted on his cause of action pursuant to Labor Law § 240. Claimant was working on a structure and in a manner covered by the statute, and he demonstrated that he was working at an elevated site, that no safety devices were provided, that he fell and sustained injuries, and that the absence of adequate safety devices was a proximate cause of his fall. Summary judgment denied on Labor Law § 200 because claimant did not show that defendant owner exercised control over claimant's work, and denied with respect to Labor Law § 241 (6) because there was an issue of fact as to whether there was a violation of one Industrial Code violation and claimant did not demonstrate that the second provision was applicable to the roof from which claimant fell.
|Claimant short name:||WOOD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||HORIGAN, HORIGAN & LOMBARDO, P.C.
By: Timothy Horigan, Esq.
Kimberly Van Wormer, Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Joan Matalavage, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 15, 2018|
|See also (multicaptioned case)|
This claim alleges that claimant suffered injuries when he fell from a roof while working on a construction project at Saratoga State Park in Saratoga Springs, New York. Claimant moves for partial summary judgment on liability on his causes of action asserting violations of Labor Law §§ 200, 240 (1) and 241 (6). Defendant opposes the motion, arguing that triable issues of fact and questions of credibility preclude a grant of summary judgment.
On July 9, 2015 claimant was employed as a full-time laborer by a contracting company owned and operated by Peter Abbott, known as PPF. Claimant was engaged in the installation of vinyl siding on the Park Manager's House, a two-story residential structure, at Saratoga State Park pursuant to a contract between PPF and the Office of Parks, Recreation and Historic Preservation (OPRHP). At the time, David Barone, the Assistant Regional Director for the Saratoga-Capital Region District of OPRHP, resided in the house with his family. The structure had two roofs made of metal, an upper roof that covered the main building and a lower roof that covered an extension to the building. Present at the work site on July 9, 2015 were claimant, Peter Abbott, the owner and operator of PPF, and Justin Layman, another PPF employee. Claimant was wearing shorts, a T-shirt and sneakers. At approximately 2:30 p.m. claimant was on the lower roof with Layman installing siding on the gable end of the building's main structure, having accessed the roof by way of a 24-foot OSHA-approved fiberglass extension ladder that had rubber-soled feet that were sitting solidly on a concrete patio adjacent to the building. The top of the ladder extended above the roof edge and it was not "tied off" or otherwise secured to the roof. Claimant testified at his examination before trial (EBT) that he did not believe that there was a place to tie off the ladder and that he had not previously tied off the ladder on the project. Claimant testified that the roof was a "walkable pitch" and that it was "not very steep" (Van Wormer Affidavit, Exhibit E, at 33). Abbott similarly testified at his EBT that the roof had a "slow pitch" and was "kind of easy" (id., Exhibit G, at 14). Claimant testified that he handed Layman the last piece of siding for the gable end and was on his way down the roof when his feet went out from beneath him. Claimant testified that he slid 10 to 12 feet down the roof into the top part of the ladder at the roof's edge, that the ladder kicked away and came back, and that claimant grabbed and held onto the top part of the ladder, and the ladder pivoted and claimant fell with the ladder on top of him onto the edge of the concrete patio, 10 to 12 feet below, where he was rendered unconscious and sustained injuries. Abbott drove claimant to Saratoga Hospital where he was treated for his injuries. Claimant testified that the weather that day was "really nice," that it was "sunny all day," except that it sprinkled rain while they were on their way to Saratoga Hospital (see id., Exhibit E, at 20).
Abbott testified that he was working on a window underneath the roof soffit on the first floor a few feet away from the ladder before the accident, that he checked the weather on his phone and saw that rain was coming, and that he told claimant and Layman to come down from the roof but they told him that they had a few pieces of siding left to finish. Abbott testified that it started to rain and thunder, that he heard the sound of claimant sliding down the roof, and that "[t]he only thing [he saw] . . . was the ladder go and then [claimant] was on the ladder and he followed the ladder right down" and the ladder came down on top of him (see id., Exhibit G, at 15, 19-20). Abbott testified that on the way to Saratoga Hospital claimant was joking around and said that " '[he] just fell off a ladder' " (id., at 27). Abbott testified that even though he did not witness claimant on the roof immediately before he lost his footing, he believed that claimant slipped because the roof was wet (see id., at 29).
It is uncontroverted that PPF was solely responsible for providing equipment and materials for the siding project, and that defendant did not provide any equipment and materials for the project. Abbott testified that there were no problems with any of the equipment used on the project, including the ladder that claimant used on July 9, 2015 prior to his accident. Abbott testified that he did not put any brackets or toe holds on the roof, or use a ladder that had a "J hook" at the top of the ladder to anchor the ladder to the roof because he did not want to put holes into or scratch the metal roof, which would be difficult to repair. Abbott testified that he did not tell claimant or Layman to tie off the ladder to the roof because the roof was not steep and it was not raining when they initially went up on the roof. Abbott further testified that there were no safety lanyards available at the work site.
Jason Penge, a Senior Park Engineer at the New York State Office of Parks, Recreation and Historical Preservation, oversaw and reviewed PPF's work on the siding project. Penge testified at his EBT that he occasionally stopped by the work site to check the progress of the project and speak with Abbott and that no other OPRHP employees went to the work site to observe the work. Penge testified that Barone lived at the house, and that the two of them discussed whether contractors were reporting to the worksite and whether they were responsible, respectful and unobtrusive (see id., Exhibit F, at 37). Claimant testified that he believed he saw Penge at the work site daily and he believed that he lived at the house (see id., Exhibit E at 26). Abbott testified that Penge told him what type of siding to use but did not give him any instruction on the type of equipment to employ. Penge testified that he did not recall seeing any workers on the roof or seeing any ladders being tied off or being equipped with any device to secure it to the roof. Penge testified that safety issues were not addressed at any pre-construction meetings with Abbott, and that if he had seen a safety violation he would have discussed it with Abbott to see that it was corrected.
Claimant, as the party moving for summary judgment, bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 ). Thus, when a movant fails in the first instance to demonstrate its entitlement to summary judgment as a matter of law, its motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Ayotte v Gervasio, 81 NY2d 1062, 1063 , quoting Alvarez v Prospect Hosp., at 324). However, if the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 ). It is well-established that a court's task on a summary judgment motion is issue identification, not issue resolution (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 397, 404 ).
Turning first to claimant's Labor Law § 240 (1) claim, that section affords workers exceptional protection from elevation-related injuries by imposing absolute liability on the owner of a work site for injuries that are sustained in a manner contemplated by the statute (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560 ; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 ). A claimant/plaintiff seeking the protection of Labor Law § 240 (1) must establish three elements: (1) that he or she was engaged in an activity enumerated by the statute (see e.g. Joblon v Solow, 91 NY2d 457 ); (2) that the injury was sustained due to an elevation-related hazard (see Ross v Curtis Palmer Hydro-Elec. Co., at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 ); and (3) that a required safety device was absent or defective and the absence or defect was a proximate cause of claimant/plaintiff's injury (see Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501).
Claimant argues that his elevation-related accident was caused by PPF's failure to provide him with any safety devices such as rails, barricades, lifelines, nets, toe boards or brackets that would have prevented his fall, and that the absence of any such safety device was a proximate cause of his injuries. To the extent that the ladder served as a safety device in this situation, claimant argues that it was inadequate because it was not secured to the building. In opposition, defendant argues that there are different versions of the accident and questions of credibility that create questions of fact as to the adequacy of the protective device that preclude judgment as a matter of law. Defendant further argues that there is a question of fact as to whether claimant was a recalcitrant worker and also that his actions were the sole proximate cause of his injuries.(1)
Here, claimant's submission indisputably demonstrates that claimant's injuries were sustained as the result of an elevation-related hazard. Claimant has further demonstrated that he was not provided any safety device that would have prevented him from falling off the roof, and that the absence of safety devices was a proximate cause of his injuries. Thus, claimant has demonstrated prima facie a violation of Labor Law § 240 (1) (see Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974 ; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521  [failure to provide any protective devices establishes liability as a matter of law]).
Both claimant and defendant assert arguments regarding the manner in which claimant set up the ladder, but they are impertinent because this is not a case in which claimant was injured while climbing or descending or working on a ladder, and there is no proof that the purpose of the ladder was anything other than to provide access to the elevated work site. The arguments regarding the ladder would be germane if claimant have been using it for one of its intended purposes, but since it was neither designed nor intended to be used as a safety device to prevent a worker sliding off the roof, the ladder has no bearing on defendant's alleged violation of Labor Law § 240 (1).
Defendant's argument that there are two different versions of certain events related to the accident that create questions of fact sufficient to defeat claimant's prima facie showing of a violation of Labor Law § 240 (1) is unpersuasive. While there may be inconsistent testimony about the height of the roof and whether rain caused claimant to lose his footing, those facts are not relevant to the questions posed by Labor Law § 240 (1). The undisputed facts show that claimant was performing work within the scope of the statute, that his worksite was elevated and lacking adequate safety devices to keep him from falling off the roof, he fell and was injured, and the absence of an adequate safety device was a proximate cause of the injuries he sustained when he landed. Nor are there any credibility questions that preclude the granting of partial summary judgment on the Labor Law § 240 (1) claim because any differing testimony of claimant and Abbott as to whether it was raining is not material to the elements of the cause of action pursuant to Labor Law § 240 (1). "[W]here the injured worker's version of the accident is inconsistent with . . . that of another witness, a triable question of fact may be presented" (Rodriguez v New York City Hous. Auth., 194 AD2d 460, 462 [1st Dept 1993] [emphasis added]), but here, differing testimony was about facts incidental to the accident and not facts relevant to defendant's potential Labor Law § 240 liability (compare Pearson v Wallace, 140 AD3d 1731, 1732 [4th Dept 2016] [conflict in evidence about placement of ladder and the instrumentality that caused plaintiff to fall]). Defendant does not argue nor offer authority for the proposition that a mere difference in testimony about a collateral factual issue affects claimant's credibility as a matter of law such that his prima facie case is defeated.
Similarly unavailing are defendant's argument that there are questions of fact as to whether claimant was a recalcitrant worker or that his actions were the sole proximate cause of the accident. The "recalcitrant worker" defense is one who refused to use safety devices that were available at the worksite (see Gordon, 82 NY2d at 563). Here, no safety devices were provided, rendering the recalcitrant worker defense inapplicable to the facts of this claim (see Stolt v General Foods Corp., 81 NY2d 918, 920 ; Arey v M. Dunn, Inc., 29 AD3d 1137, 1139 [3d Dept 2006]). Nor does claimant's alleged refusal to get off of the roof after having been warned about rain render him a recalcitrant worker because the defenses applies only if the worker was non-compliant with an instruction to an available safety device (see Powers v Del Zotto and Sons Bldrs., 266 AD2d 668, 669 [3d Dept 1999]). Finally, inasmuch as claimant has demonstrated that he not was provided with any safety equipment in violation of Labor Law § 240 (1), and that the violation was a proximate cause of his injuries, "it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 ). In sum, claimant has demonstrated his entitlement to partial summary judgment as a matter of law on his Labor Law § 240 (1) cause of action, and that showing has not been defeated by defendant.
Labor Law § 200 (1) is a codification of the common-law duty that is imposed upon contractors and landowners to provide a safe workplace. To impose liability on the owner where, as here, the injury arises not from a defect in the land but from the methods or materials being used on the project, it must be shown that the owner had supervisory control over the work in the nature of "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 352 [emphasis in original, internal quotations and citations omitted]; see Rapp v Zandri Constr. Corp., 165 AD2d 639, 642 [3d Dept 1991]; Comes v New York State Elec. & Gas Corp., 189 AD2d 945, 946 [3d Dept 1993]). Evidence that defendant's agents had general supervisory authority to oversee the work, performed inspections to evaluate work product and contract compliance, or had the authority to issue a stop work order for safety reasons is insufficient to support a Labor Law § 200 cause of action against the owner (see Riccio v Shaker Pine, 262 AD2d 746, 748 [3d Dept 1999], lv dismissed 93 NY2d 1042 ; see also, Foley v Consolidated Edison Co. of N.Y., Inc., 84 AD3d 476, 478 [1st Dept 2011]; see also Perchinsky v State of New York, 232 AD2d 34, 38 [3d Dept 1997], lv denied 93 NY2d 812 ; Custer v Cortland Hous. Auth., 266 AD2d 619, 620 [3d Dept 1999], lv denied 94 NY2d 761 ). Claimant has not demonstrated that defendant had the authority to control his work while his was on the roof, and indeed, the evidence submitted in support of claimant's motion demonstrates that defendant's agents did not direct or manage the work of PPF employees in any manner. Thus, that part of claimant's motion seeking partial summary judgment on its Labor Law § 200 (1) cause of action will be denied.
Labor Law § 241 (6) imposes on owners the duty to "comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 ; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 ), which are known as the Industrial Code and which are found in 12 NYCRR part 23. "In order to state a claim under [Labor Law] section 241 (6), a [claimant] must allege that the [defendant] violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 ). Claimant argues that he is entitled to summary judgment for violations of 12 NYCRR 23-1.7 (d) and 23-1.24 (a).(2)
The first of these sections, 12 NYCRR 23-1.7 (d), provides that "[e]mployers shall not suffer or permit any employee to use a[n] . . . elevated working surface which is in a slippery condition." Here, claimant himself testified that it did not begin to rain until after his accident and he himself offers no proof that the roof was slippery. To the extent that claimant's motion is supported by Abbott's testimony that it started to rain before claimant fell, claimant's own submission gives rise to a question of fact with regard to an alleged violation of this Industrial Code provision and thus he has not met his prima facie burden on his motion for summary judgment. Nor has claimant demonstrated defendant's violation of the Industrial Code provision that provides that "[r]oofing brackets shall be used whenever work is to be performed on any roof having a slope steeper than one in four inches unless crawling boards or approved safety belts are used in compliance with this Part (rule)" (12 NYCRR 23-1.24 [a] [emphasis added]) because although there was testimony that the roof was not very steep, claimant has submitted no evidence demonstrating that the slope of the roof exceeded one in four inches (see Amirr v Calcagno Const. Co., 257 AD2d 585, 585 [2d Dept 1999]). Thus, claimant will not be granted summary judgment on his cause of action pursuant to Labor Law § 241 (6).
Accordingly, it is
ORDERED, that claimant's motion number M-92201 is GRANTED IN PART, to the extent that judgment is granted on the issue of liability on claimant's cause of action pursuant to Labor Law § 240 (1); and it is further
ORDERED, that claimant's motion number M-92201 is DENIED in all other respects; and it is further
ORDERED, that a trial on the issue of damages shall be scheduled as soon as practicable.
August 15, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated April 27, 2018;
(2) Affidavit of Kimberly Van Wormer, Esq., sworn to April 27, 2018, with Exhibits A-G;
(3) Affidavit of Joan Matalavage, AAG, in Opposition, sworn to June 29, 2018;
(4) Reply Affidavit of Timothy Horigan, Esq., sworn to July 6, 2018.
1. Labor Law § 240 (1) provides an exemption for work performed on a one-family dwelling, but claimant argues that the Park Manager's House does not qualify for the exemption because defendant is not the type of owner that the exemption was intended to cover, and because defendant directed and controlled the work (see Van Wormer Affidavit, ¶¶ 25-26). Defendant does not dispute the applicability of Labor Law § 240 to this structure, nor does it argue that claimant was engaged in an enumerated activity under Labor Law § 240 (1). Defendant's lack of opposition to the applicability of the statute is construed as a concession that the statutory exemption does not apply to this claim.
2. Although claimant alleged in the claim and in his verified bill of particulars that sections23-1.5 (a), 23-1.7 (b), and 23-2.6 were also violated, those alleged violations are not addressed in his motion for summary judgment.