New York State Court of Claims

New York State Court of Claims

KOUROS v.THE STATE OF NEW YORK, #2000-004-504, Claim No. 98994, Motion Nos. M-60503, CM-60664


Synopsis



Case Information

UID:
2000-004-504
Claimant(s):
JAMES KOUROS
Claimant short name:
KOUROS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98994
Motion number(s):
M-60503
Cross-motion number(s):
CM-60664
Judge:
JEROME F. HANIFIN
Claimant's attorney:
LAW OFFICES OF LAWRENCE P. BIONDIBY: Lawrence P. Biondi, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Coughlin & Gerhart, LLP James P. O'Brien, Esq., of counsel
Third-party defendant's attorney:

Signature date:
June 6, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:
Affirmed - Third Dept., 11/8/01
See also (multicaptioned case)



Decision

Claimant moves for summary judgment (Motion No. M-60503), and the State cross-


moves for summary judgment (Cross-Motion No. CM-60664)


The following papers were considered by the Court:

Claim, filed September 18, 1998 1

Notice of Motion No. M-60503, filed October 13, 1999 2


Affirmation of Lawrence P. Biondi, Esq., in support of motion,
with attached exhibits, dated October 6, 1999 3

Notice of Cross-Motion, filed November 8, 1999 4


Affidavit of James P. O'Brien, in opposition to Claimant's motion

and in support of cross-motion, with attached exhibits, sworn to
November 2, 1999 5


Affidavit of David A. Demick, in support of cross-motion, sworn
to November 1, 1999 6


Affirmation of Lawrence P. Biondi, Esq., in opposition to cross-

motion and in further support of Claimant's motion, dated
November 24, 1999, filed December 2, 1999 7


Reply Affidavit of James P. O'Brien, Esq., in support of cross-

motion, with attached exhibits, sworn to December 3, 1999
filed December 6, 1999 8



The Claim recites in pertinent part:

  1. THE NATURE OF THE CLAIM:
Claimant, JAMES KOUROS sustained personal injuries by reason of the negligence and carelessness of The State of New York....in failing to provide claimant with a safe place to work; in violating §§ 200, 240 and 241 of The Labor Law of the State of New York; in failing to furnish or erect, or caused to be furnished or erected for the performance of claimant's duties, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which should have been so constructed, placed and operated as to give proper protection to the claimant.

3. THE TIME WHEN, THE PLACE WHERE AND THE MANNER IN WHICH THE CLAIM AROSE:

Claimant, JAMES KOUROS was injured when the scaffold upon which he was working collapsed, causing claimant to fall approximately 50 feet to the Chenango River. The accident occurred on June 23, 1998 at approximately 11:00 a.m. at the Route 17/Interstate-81 bridge.

A motion for summary judgment (SJ) "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". (CPLR 3212[b]) CPLR 3212 goes on to provide that a motion for SJ shall be denied ‘if any party shall show facts sufficient to require a trial of any issue of fact". (CPLR 3212[b] [underscoring added]) With regard to this provision, the Court of Appeals has held:
[B]ecause "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v Garlock, 23 AD2d 943, 944), we have scrutinized the affidavits carefully, in the light most favorable to [the non-moving party]. But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment.

(Rotuba Extruders v Ceppos,
46 NY2d 223, 231; see also, Nidds v Procidano, 95 AD2d 912).


Both parties seek SJ under Labor Law § 240. The Claimant moves for SJ on the basis that § 240 was violated and that the violation was a proximate cause of the accident and his injuries, as a matter of law.


The State cross-moves for SJ on the basis that the Claimant was a recalcitrant worker, as a matter of law.


From a review of the voluminous papers before the Court, it is clear that there are no issues of fact with regard to ownership - the State owned the bridge - with regard to the integrity of the scaffold - the scaffold did collapse - nor with regard to what happened to Claimant when the scaffold collapsed - he fell into the river below. In his 13 page affirmation in support of Claimant's motion for SJ, which for the most part is a memorandum of law, Claimant's counsel anticipated the State's cross-motion. We find therein "Respondent will apparently attempt to argue that claimant was a ‘recalcitrant worker' nullifying the operation of the Labor Law as discussed above. It will be shown, however, that the facts of this case do not support the recalcitrant worker defense". (Paper No. 3, ¶ 10) Attached to Claimant's counsel's affirmation as exhibits are excerpts from examinations before trial which are offered to supply a factual context within which to address the recalcitrant worker issue. In his 22 page affidavit in opposition to the Claimant's motion for SJ and in support of the State's motion for SJ, which is also, in considerable part, a memorandum of law, State's counsel quotes extensively from various examinations before trial, attaching excerpts from those examinations before trial as exhibits. (Paper No. 5)

Guided by Paper No. 3 and 5, the Court has reviewed all of the submissions. What follows are what the Court finds are excerpts from examinations before trial, all quoted verbatim,[1]and from the various submissions that are relevant to the task at hand, which is to determine whether Claimant was not a recalcitrant worker as a matter of law, whether Claimant was a recalcitrant worker as a matter of law or whether there is an issue of fact with regard to whether Claimant was a recalcitrant worker as a matter of law.


We begin with pertinent excerpts from the Claimant's examination before trial.[2]
Q. Who was your employer on that date?

A. United Painting.

Q. United Painting. Have you ever worked for a company called Promo Pro?

A. United Painting contract from Promo Pro. Promo Pro was paying us.

Q. Okay. You were employed by United, but you were paid by Promo Pro, is that fair to say?

MR. BIONDI: Your check was from Promo Pro?

THE WITNESS: My check was from Promo Pro and my boss was United Painting.

***

Q. What was the job that United Painting was doing in Binghamton?

A. It was sandblasting and painting bridges.

Q. And is that the same job that you had when you came back in 1998?

A. Yes.

***

Q. What did you do that day when you got to the site, do you recall?

A. All of us, we started working to fix the containment of the bridge moving the platforms.

Q. Okay. Where were you moving them from and to?

A. From the ground to the bridge.

Q. Okay. Would it be fair to say you were constructing a scaffold?

A. Yes.

***

Q. Now, at the time of your accident what were you doing when the accident happened?

A. We were prepare to go for a break, lunch break...

Q. Why don't you tell me what happened.

A. We were in the platform, not in the pier. We were stepping down to the platform to walk off the bridge and the minute we stepped, the three of us, we came down.

Q So, you were stepping from the pier onto the scaffold?

A To the scaffold.

***

Q Okay. Where were you and where were you working?

A. We were constructing the platforms starting from

the end of the bridge going this way (indicating) and there were pylons --

Q Okay. Out into the water - - from the bank out into the water, over the water?

A Right. We construct - - we finish up to the pylon and we were going to the next pier and we were going for a break. We were up in the pylon - -

Q The pylon or pier?

A. Right.

Q. Okay.

A. - - and we were going down to the platform to walk off. The minute we stepped down, everything comes down....

Q So, you were constructing a scaffold on some cables, is that correct?

A Right.

***

Q Okay. So, you had started constructing a scaffold by placing platforms on cables, is that correct?

A On cables, correct.

***

Q. How big were these platforms?

A. Four feet by twenty-four feet.

Q. So, you had placed one on the other side of the second pier?

A. Right.

Q. Then you stepped on to the pier?

A. Onto the pier and we had to step down back to walk off that way.

Q. So, you had completed one platform onto the - - on the other side of the pier?

A. Yes.

Q. You stepped onto the pier?

A. Right.

Q. And you were going from the pier onto the scaffold that you had already constructed - -

A. Right.

***

Q. - - when the scaffold collapsed?

A. Right.

***

Q. At the time of the accident were you wearing a full-body harness?

A. Yes.

***

Q. And you said it had two lanyards?

A. Two lanyards.

Q. That's two ropes or other devices that are attached to both sides or both waists?

A. Both waists right here (indicating).

***

Q. Did you have your full-body harness on at the time of the accident?

A. Yes.

Q. And did you have lanyards attached?

A. Yes.

Q. And were the lanyards approximately five feet long?

A. Yes.

Q. And did you have your lanyards attached to anything at the time you fell?

A. I hold it in my hand and I was ready to attach it (indicating).

Q. Okay. And would it be fair to say you were going to attach it to something at the time you fell?

A. I hook it up. I was in the pier, all of us, that's the procedure, and we were ready to attach to the line and that happened.

Q. And this would be an overhead line that you were going to attach it to?

A. It was a line going across the safety line.

Q. Safety line?

A. Right, designated by the inspectors. So every time we go up there we have to do that.

Q. The job was 100 percent tie-off job?

A. 100 percent.

Q. It means any time you were on the scaffold you had to be tied off, is that correct?

A. Any time you step on the scaffold you have to be tied down.

***

Q. So, the safety line was about your chest high?

A. Yes.

Q. Was there a safety line on the other side of the pier where you had been putting the platform just before the accident?

A. Yes.

Q. And when you were placing the platform on the other side of the pier, and that's the pier that you stepped onto right before the accident happened, was there a safety line there also?

A Yes.

Q And when you were doing that work were you attached to that safety line?

A. Yes.

Q. And at the time of the accident were you attached to any safety line?

A. No.

Q. Okay. Why weren't you attached to any safety line?

A. Because the procedure to go from this pier to that, which is about six feet, you have to through the inspector - - the inspector told us to unhook here and we got in the pier, we come down here to hook up (indicating).

***

Q. So, you were saying that as you traveled from one side of the pier to the other side of the pier you were unhooked, is that correct?

A. Yes.

Q. Okay. And your intention was to hook to the safety line at the side of the - - when you stepped onto the scaffold, is that correct?

A. Right.

***

Q. But at the time - - and you were directed that this was a 100 percent tie-off job any time you were on the scaffold, is that correct?

A. Yes.

***

Q. And you knew that any time you were at an elevated height you had to be tied off, is that correct?

A. Yes.

***

Q. That is the correct procedure, is that correct?

A. That's the correct procedure. But at the position that we had problems with the inspectors, once we pass an obstacle or what is support of the safety line we have had to - - one line here and one there. First we hook this up, then we hook this and we go through (indicating). 100 percent.

But in that - - in that position it's about six - - over six feet and the lines are underneath, the platforms come straight and they are - - and the safety lines are underneath, so I was instructed when I go there, and I mean everybody, and by the inspectors, you unhook there, you go to the other side, the first thing while you are there you hook up and you continue (indicating).

***

Q. So, you're saying that when you were on a pier, someone told you you did not have to be hooked onto the safety line?

A. We have to - - you have to be hooked up all the time, but when you crossing across, walking across, you cannot be tied over there and tied here because (indicating) - -

MR. BIONDI: Why not? Why not?

THE WITNESS: Because the cables, they go underneath that much space (indicating). It's impossible. You have to go like this (indicating).

BY MR. O'BRIEN:

Q. There was nothing on the bridge pier that you could attach to?

A. (Shrugs)

MR. BIONDI: You have to put it in words. The court reporter can't take that down.

BY MR. O'BRIEN:

Q. Yes or no, you don't know?

A. I don't know.

Q. There was no safety line that ran from one side of the pier to the other side of the pier?

A. Not that I know.

Q. Where was the safety line when you were on the pier? Did you see a safety line?

A. Yes.

Q. Where was it?

A. From the pier - - from one pier to the other.

Q. There was no safety line that went on top of the pier?

A. No.

Q. You're saying that you could not hook up from one side of the pier safety line to the other side of the pier while staying completely 100 percent tied off, is that what you were saying?

A. Right, because it was too far. The safety line was there and the other one was there (indicating).

***

Q. Couldn't you have sat on the pier and attached yourself without stepping onto the scaffold?

A. Not really, because attaching to the pier was the platform that come next to the pier. We were in the pier.

***

Q. When you stepped down from the pier - - or you stepped off the pier onto the scaffold - -

A. Right.

Q. - - was it even or did you have to step down or did you have to step up?

A. It was even like that (indicating).

Q. So, it was even. So that the scaffold planks came right up to the pier?

A. Right.

***

Q. ...What you're saying, it was straight right up to the pier and then at the middle over the water it kind of went down a little bit?

A. Right.

Q. Okay. So, when you stepped off, you stepped off the pier waking towards the earth and embankment, you stepped right on an even basis onto the scaffold, is that correct?

A. Yes.

Q. And that's when the accident happened and you fell, is that correct?

A. Yes.

***

Q. So, other than the time you just described going from one scaffolding over the pier to another scaffold did you use your tie-off devices at all times?

A. Yes.

Q. And there had been some safety meetings about that issue where everyone was told it was 100 percent tie-off job, is that correct?

A. Correct.

Q. You had testified earlier about a procedure used when you went from the scaffold over the pier to another scaffold, remember? You had testified to some type of procedure. What were you told to do?

A. I was told to - - well, I had to be tied all the time. If I didn't get tied I get fired.

***

Q. Okay. Did you ever have any discussions with any of the State employees working on the job?

A. Yes.

Q. Who did you have discussions with?

A. Not by myself. The whole group that come over and discuss us, the safety procedures.

Q. At a safety meeting?

A. A couple safety meetings. And if everybody - - if one get caught, second time he's fired.

***

Q. ...About what time of the day did the accident happen?

A. It was Tuesday, the 23rd.

Q. Do you know what time of day it was?

A. It was around - - past 11:00.

Q. Okay. And I believe you indicated you testified earlier that you were heading back towards the shore, is that correct?

A. Yes.

Q. What were you going to do at the shore?

A. Before we give - - every one of us give $5 and send somebody to get a pizza.

Q. Okay. So, were you going to take a lunch break then?

A. Right.

***

Q. And the harness that you were wearing, it worked all right? There was no problems with it?

A. No problem.

***

Q. Now, you said you fell. What happened? Do you remember falling down?

A. I remember the step off and I landed down, that's it.

***

Q. How many - - had you done the same exact procedure previously? And by same exact procedure, I mean unhooking the safety lanyard, then walking across the pier and stepping onto the platform and reattaching the safety lanyard, had you done that procedure previously?

A. Yes.

Q. How many times had you done that same exact procedure before the date of the accident?

A. Many, many times.

***

Q. Okay. And is your testimony that it was an everyday occurrence for you to do the same procedure that you did on the date of the accident previously?

A. Yes, yes.

***

Q. ...as you walked across that pier, why did you have to unhook in the first place?

A. To get myself on the other side.

Q. Okay. How wide is the pier in that location where the accident occurred? How wide is the pier?

A. According to my estimation it's one platform, four feet on one side, it goes straight to the pier, and another four feet, and it's a space between which we have to close with plywood because where the chains cut the plywood and fill it up, that space, so you don't fall down.

***

Q. Okay. The distance from the one safety line on the opposite end of the pier to the distance to the other safety line on the other end of the pier is how long?

A. The distance?

Q. The distance from the safety line to safety line?

A. Ten feet.

Q. Okay.

A. Fifteen feet. I can't estimate.

***

Q. And, Mr. Kouros, did you have to step onto the platform before you could reattach yourself to the safety line?

A. Yes.

Q. And why is that, sir?

A. Nowhere else to step.

Q. Okay. Could you have attached your lanyard to the safety line on the other end of the pier before you actually stepped onto the platform, yes or no?

A. No.

Q. Why not?

A. Because if I'm attached here and there and I'm here, I have no - - how I'm going to travel over there (indicating)?

Q. Mr. Kouros, the court reporter can't take down here and there. You have to put into words what you're trying to say.

A. The distance was too far where I have no distance of movement to attach myself over there and then come back to the same position to reattach myself to move forward. How can I do that? Impossible.

***

Q. ...The same procedure that you followed on the date of the accident, did you see inspectors actually do that same procedure previously? A. Many, many, many times.

Q. ...And did you actually see inspectors unhook their safety lanyard, walk across the pier, step down, step onto the platform, and then reattach the safety lanyard to the safety line?

A. If I was in there - -

Q. Just answer the question. Did you see inspectors do that procedure before?

A. No. But in order to get there, like anybody, I didn't look to check them, but as they moving everybody was doing the same thing, inspectors, foreman and workers.

MR. O'BRIEN: But you never saw any inspector do that, is that correct?

THE WITNESS: I haven't just looked, check and see if he does the same thing. We're all working, friends and, you know, we pass by and if they see something that was unsafe - -

MR. O'BRIEN: Your answer is no then, that you have never seen that, is that correct?

THE WITNESS: No.

MR. O'BRIEN: Is that correct?

THE WITNESS: I guess.

BY MR. BIONDI:

Q. We just want to know yes or no, did you ever yourself, with your own eyes, see an inspector do the same thing you did on the date of the accident, yes or no?

A. No.

***

Q. Okay. And this procedure that you talked about of unhooking when you got up and were on the scaffold and you stood on the pier and then hooked back on, this procedure, who told you it was all right to do this, if anyone, or did you just do it?

A. Everybody do the same procedure and I pick it up.

Q. But no one ever told you it was all right?

A. The inspectors, they give us briefing how to hook and how to unhook and we follow the procedures they give us.

Q. Weren't the procedures that you were to be hooked up 100 percent of the time as you previously testified to?

A. Yes.

***

Q. Weren't you told, Mr. Kouros, on a continuing basis that when you are elevated over six feet off the ground that you were supposed to be tied off 100 percent of the time? Weren't you told that by the State inspectors?

A. Yes, sir.

***

Q. And, in fact didn't you have a safety meeting about two weeks before your accident and at that safety meeting you were told to be 100 percent tied off any time you were over six feet above the ground, is that true?

A. Yes, sir.

Q. And didn't you tell two of the New York State inspectors right after that meeting, I always tie-off 100 percent of the time? Didn't you say that to time?

A. I did say that.

Q. And didn't you also say to those two New York State inspectors, I tell the young kids they got to be tied off 100 percent of the time when they're working?

A. Yes, yes, and I enforce that.

***

Q. You said that there was a gap between the safety line from the scaffold when you got to the pier? Your safety line or static line stopped, is that correct?

A. Right.

Q. The tie-off line?

A. Right.

Q. And then it resumed on the other side, is that your testimony?

A. It was impossible to be 100 percent tied in one side, come back, because you are in the center and go over there (indicating) - -

***

Q. Was there a gap where the one static line or safety line stopped and the other one started?

A. Yes.

Q. So, when you got to the pier one line stopped, is that correct?

A. It didn't stop continuously, but it was underneath the beam and the platforms in the top where you could not go. It was impossible to tie it up.

Q. What was the static line under?

A. Under the pier, because the platforms as they were coming up, making a loop, they were coming up to the pier like this and here's the beams across, the static line was underneath (indicating).

Q. So, it was - - you're saying it was physically impossible - -

A. Physically - -

Q. - - to stay connected?

A. Yes.

Q. And did you ever measure the distance between where one - - where you could not attach from one end to the other end?

A. I did not. It was not my job to attach the safety lines and I didn't measure. I estimated the distance by the dimensions of the platforms and - -

Q. And then as soon as you stepped off the pier you hooked back onto the safety line, is that correct?

A. As soon as I stepped in the pier?

Q. Yes. No, step off the pier?

A. Off the pier I was ready to hook it up. I had it, the unhook - - the hook/unhook ready to hook up and that's what happens. And that's what I think hits me over here with the fall and make this string over here, my safety line (indicating).

Q. Now, this space that you said you can't hook your safety line to, was that always the same amount of space on every pier or was it different because of this pier?

A. The same.

***

Q. And it was the same for the two years that you were working?

A. Yes, yes.

***

Q. The New York State inspector saw someone not tied off, he would close the job down?

A. He would stop everybody and everybody will come down. There was a briefing and if it happened twice they say the policy's you have to get fired from the job.

Q. So, you were found to be unhooked twice you would be fired from the job?

A. Of course.

Q. And if you were found unhooked once you would be reprimanded?

A. If you found once they just say you have to stay down and, you know, be careful....

***

Joseph Fiorelli, a co-worker of Claimant, is also pursuing a Claim against the State of New York arising out of the same accident. (see, Paper No. 5, ¶ 6 and Ex. 3) Paper No. 5, Exhibit 4 consists of excerpts from his examination before trial in that Claim, submitted by the State, pertinent parts of which, quoted verbatim, follow:
Q You were provided with a harness. Is that correct?

A Yes.

***

Q And the two snaps on the ends are to snap on the - -

A They snap on the line that you're - - secure line.

Q That would be - - that's sometimes called a safety or static line?

A Correct.

Q And those are lines that were put up underneath the bridge?

A Correct.

Q And those were lines that you were to attach your harness to. Is that correct?

A Correct.

Q And the purpose of that was if you fell or the scaffold collapsed, you would still be connected to the bridge.

A Correct.

***

Q And they were in place at the place you were working. Is that correct?

A Yes, they were.

***

Q You had two lines. Is that correct?

A Yes.

Q Okay. And so there - - there was a period of time when you were not connected to this static or safety line. Is that correct?

A Correct.

Q So you weren't a hundred percent tied off. Is that correct?

***

Q At the time of the accident.

A Right.

Q What was your purpose in switching your line...Is it fair to say you were changing the - - from one line on one side of your body to the line on the other side of your body?

A Correct.

Q Okay. Which one were you - - okay.

A The reason why I had to do the switch is because

where I was at, we had a beam right directly above me. So in order for me to go back over, I had to unhook and hook in order for me to travel.

Q Okay. Is it fair to say you were unhooking your left one - -

A Correct.

Q - - your left line and you were hooking your right line - -

A Correct.

Q - - when it happened?

***

A Correct.

Q Okay. And what was the distance of this beam that you were - - you were trying to - -

A It was a two-foot beam.

Q Was that two foot wide?

A Yeah.

***

Q And three people fell into the river. Is that correct?

A Right, the three that I gave you right there.

Q Where were the other four people?

A The other - - three of them were on the - - on the - - the pier; the fourth one, he jumped to get on the pier as - - is what he had told me was when - - when - - when the scaffolding fell, he jumped and he grabbed ahold of the bar. And that's what kept - - that's what kept him from coming down.

Q Did they have - - the other four people have their safety harnesses tied off?

A As far as I know they - - we all had them off, tied off.

Q Tied off.

A Like tied off.

Q That means connected to the - -

A Connected to the safety line.

***

Q You were moving from where to where at the time of the accident?

A I was standing on - - the platform is here. We had scaffolding sitting here. I was standing on the, would have been the left side of the scaffolding toward - - toward Binghamton.

***

Q And would it be fair to say that at the time of the accident the three of you were not tied off? Is that correct?

A The - - as far as I know the other two were. Like I said, I was getting ready to move over to - - to tie off.

Q They fell into the river even though they were tied off. Is that what you're saying?

A As far as - - yeah.

***

Q Do you know why they didn't - - their safety belts didn't - -

A No.

Q - - protect them from falling?

A No.

***

Q Okay. What were you doing before you untied yourself from the static line?

A We were moving platforms from - - from one to the other.

Q Okay, just lifting them up and moving the platforms?

A Correct. We had like a roller, it's like a - - it's like a long bar that we used, we put in the middle of the - - of the pier, we set the platform on it, and that way it's easier to push through.

Q How wide were these platforms?

A As wide as the table.

Q Say four foot?

A Four.

Q How long were they?

A They would have been 24.

Q And James Corros and Mike Fontos were the people helping you in doing this?

A Correct.

Q Anybody else?

A There was one more. He come over to help us. I can't remember his name. He was the one that jumped, jumped to the middle. He's the one that grabbed on to the bar.

***

Q Okay. When you were going from one static line or safety line to the other, you said you unhooked your - - your line at the time of the accident?

A Right.

Q Why didn't you just leave one hooked on and move the other - - hook the other one on?

MR. BERGER: I'm going to object to the form

MR. O'BRIEN: On what grounds?

MR. BERGER: It's already been asked. If you - - if you understood it you can answer it.

A I was - - I was kind of - - I don't know.

MR. BERGER: If you don't know you don't know.

If you don't remember.

A Just - - I was just - - just moving the way I was, you know, I was going to leave and go for lunch.

***

Q Isn't it true that you could have left one line hooked on and then hooked on the other line, then unhooked yourself?

A Could have, yes.

***

Paper No. 3, Exhibit 4 is a Police Incident Report triggered by the events which give rise to this Claim. It is referenced by State's counsel, since it recites that some workers were attached to a safety line and did not fall. (see, Paper No. 5, ¶ 4) This document states in pertinent part, "Spoke with Nick Hatzilenis. He is the foreman for Promo Pro. He had a crew of 12 men including himself. Promo Pro is under NY State DOT contract to paint the Rt 17 bridges. He said the crew was getting ready to break for lunch when the scaffolding collapsed". The Incident Report then continues: "The following listed men were also on the scaffold before it fell into the river. The listed men below were wearing their safety harnesses that were attached to a safety line. They did not fall into the river. They were able to get to safe ground and go assist their injured fellow workers". There are then listed three individuals identified as "Scaffold Worker".


In paragraph 32 of Paper No. 5, State's counsel avers, "Michael Ryan, an employee of the State of New York, testified on behalf of the State. At the time of this accident he was an engineering technician doing bridge painting inspection for the State of New York".


What follows are relevant excerpts of Mr. Ryan's examination before trial, quoted verbatim, attached to Paper No. 5 as Exhibit 5.

Q. Okay. And was the structure of the bridge the same on both sides, the physical structure of the bridge?

A. Yes.

Q. And did you ever have to pass from one span to another span?

A. Yes.

Q. And you used a safety harness?

A. Yes.

Q. And safety line?

A Yes.

Q And what did you do to go from one span to the other span?

A. I would hook - - I would be hooked up, come to the span, reach around - -

Q. Did you unhook? Did you unhook?

A. I left the one hooked up, reached around, hooked onto the second side of the span, unhooked, so there was 100 - - so I was hooked up at all times.

Q. How long was your safety lanyard?

A. Five feet. Or the lanyard itself, there was two of them, two, five-foot lengths, one on each side, one on each hip.

***

Q. What's the width of the pier?

A. The concrete pier itself - -

Q. Yes.

A. - - that the bridge is on? Probably between two-and–a-half and three feet.

Q. That's the total length of the pier?

A. Width.

Q. Total width of the pier?

A. Correct.

***

Q. Is there any location where the width of the pier is six feet?

A. No.

Q. As far as you know what's the greatest length of any concrete pier?

A. Length or width?

Q. I'm sorry, any width of the concrete pier, thank you.

A. Three feet.

Q. What would be the length of the concrete pier?

A. It would be - - I don't know definite. I can't give you an exact figure on the width.

Q. On the length?

A. On the length, I'm sorry. Now you've got me doing it. On the length. It would be twenty-four feet - - well, less than twenty-four feet because the panelings were set on the cables that were twenty-four-foot lengths, so there was - -

Q. The reason, you know why - - the reason why we're getting confused is because the length of the concrete pier would actually correspond to the width of the bridge, correct?

A. Correct.

David A. Demick was the engineer in charge of the bridge painting project. In his


affidavit (Paper No. 6) submitted with cross-motion (Paper No. 4) he avers in pertinent part:

3. At the time of the accident complained of in this case, the scaffold was in the process of being constructed by, among others, Kouros and Fiorelli. All workers on the project, including Kouros, had been instructed, on numerous occasions and on continuing basis, that when they were constructing the scaffold (among other times) and were more than six feet above the ground they had to be 100% tied off. That meant that one of the two lanyards, that were attached to their safety harness, had to be tied to a safety line or the bridge itself, i.e., cross bracing of the bridge. At the time of the incident, Mr. Kouros should have been 100% tied off by use of his safety harness, which had two lanyards attached to it, whereby at least one lanyard could have, and should have, been attached to the safety line which was already in place at the location where he fell, and at the locations he claims he fell.

4. The safety line was at the height of between his chest and his head level and if he was on a pier, it would be lower than that, but still within easy grasp.

5. Had Mr. Kouros been attached to the safety line, as he had been instructed to, and I have been told he has admitted that he knew he was suppose to, he would not have been injured in this accident. The safety system that we had in place, namely the safety line/static line, the safety harness with two lanyards, one of which should have been hooked to the safety line, would have prevented his injuries and the fall from the elevated height.

***

7. There is no question that if Mr. Kouros was either on the scaffold platform itself or on the pier, he could have tied off his lanyard onto the safety line/static line that was available to him at those locations. Even assuming for the sake of argument that there was no safety line available to him while he was on the pier, he most certainly could have, and should have, tied off using the bridge cross bracing which was located at the pier. In any event, there were available places where Mr. Kouros could have and should have tied off.

8. Said 100% tie off rule was strictly enforced including, but not limited to, on the date of the claimant's accident.

9. In reviewing my file, I also note that on September 12, 1997, the preceding year, Mr. Kouros was at a meeting with all of the workers where the 100% tie off rule was explained. I attach meeting information hereto as Exhibit "6".


What follows is what the Court finds to be pertinent excerpts from Exhibit 6 referred to


by Demick, quoted verbatim:

Friday 9/12/97

***

on THIS DAY we had a General safety meeting under 2-81S. because The job was shut Down from 11:00 AM To 12:05 pm on the reason that the inspector Dick Loockwood saw Misty phelps walking from the outside not even wearing her safety belt. so we gathered up the guys & I explained to them what they should do and consisted on a 100% tie off. & Misty we gave her the rest of the day off.


Attached to Paper No. 3 as Exhibit 3 is an "Initial Notification of Work Zone Accident" form prepared by Demick, dated June 25, 1998. It identifies injured laborers, all employed by Promo Pro, as Emanuel Fotinos, Joseph Fiorelli and Claimant and provides the following verbatim description of the accident: "In the process of setting up platforms on SB Route 81 over the Chenango river, A cable chocker failed. Two more cables immediately failed dropping the platform and three of the contractors workers into the river".


In Claimant's counsel's affirmation in opposition to the State's cross-motion and in further support of Claimant's motion (Paper No. 7), Claimant's counsel rehashes a good part of the EBTs and then summarizes Claimant's position as follows:
8. Respondent has failed to submit any proof that Mr.

Kouros did anything improper in the procedures he followed and certainly has not proved that claimant DELIBERATELY refused to use available safety devices. In fact, the evidence submitted by respondent clearly shows that claimant was a very conscientious and safety minded worker who even looked out for the safety of the younger workers on the job. There is simply absolutely no evidence that claimant had any history of safety infractions and certainly no evidence that claimant refused to follow any specific safety instructions on the day in question.

(Paper No. 7, ¶ 8)



In his Reply Affidavit (Paper No. 8) the State's counsel offers the following thoughts:

The Claimant knowingly and intentionally violated the rule and was injured thereby. Dave Demick, Mike Ryan and Joseph Fiorelli all have indicated in this case, that it was physically possible for Claimant to remain tied off while working in the exact location where the scaffold collapsed. Claimant has indicated that he does not know whether or not it was physically possible for him to have remained tied off.

(Paper No. 8, ¶ 16)




Exhibit 5 attached to Paper No. 3 consists of photocopies of photos which, according to Claimant's counsel were taken "immediately" after the accident. (Paper No. 3, ¶ 3) Some of the photocopies are of such dismal quality that nothing can be learned from them. Some are numbered, albeit not in order. The Court has taken the liberty of numbering the pages upon which the photocopies of the photos appear and will identify the photos referred to, hereinafter, by page number and location on the page, e.g., middle photo. Some discussion of the photos is helpful because they supply at least some clarification with regard to the physical setting where this accident occurred. Those who have read this Decision thus far must be acutely aware of that need.


The top photo on page 7 shows the entire bridge , from the side, as it spans the Chenango River. It is a large bridge, not surprisingly, since it carried Route 17/interstate Route 81across the River. The bridge was supported by massive concrete structures (page 4, middle photo), upon which were placed massive steel girders which carried the travel deck across the span or space between one concrete structure to the next. (p 7, bottom photograph) There were three such girders in each span, the ends of each resting on one of the concrete support structures. (p 4, middle photograph, p 6, top photo) The three girders in each span appear to be equal distance apart. That is, one rested on the west ends of the support structures, another on the east ends of the support structures and the third on the middle of the support structures. (p 4, middle photo) Each support structure, and there appear to have been three actually located in the river (p 7, top photo) consisted of a solid concrete base from the top of which three concrete cylindrical pillars arose, two on the outside ends of the concrete base and the third directly in the middle. (p 4, middle photograph) There was a solid concrete structure, about the width of the bridge, which straddled the top of these three pillars and the ends of the three girders rested on the top of this concrete structure. (p 4, middle photo; p 6, top photo) The bridge deck itself jutted out beyond the exterior girders both to the east and the west. (p 12, bottom photo; p 13, bottom photo) It is reasonable to infer that references to pylons found in the documents before the Court are references to the concrete support pillars and references to the pier are references to the solid concrete structure which rested on the top of the three concrete pillars at each support structure.



Since workers never, well hardly ever, shout their refusal to use a safety device from on high shortly before gravity pulls them downward, whether a given worker has demonstrated recalcitrance such as to defeat a Section 240 Claim ordinarily involves a review of relevant evidence specifically with regard to the (1) availability and ability to use a safety device(s) and (2) the timing of instructions or warnings with regard to the use of safety devices.


Incredible though it may seem, there is an issue of fact with regard to the availability of a safety device, that device being the safety line, although the subject was addressed at length during the examinations before trial of Claimant and Fiorelli, as well as in the Affidavit submitted by Demick. That is, whether, at the time that the scaffold collapsed and Claimant fell, he was in a position where he could have been physically attached by a lanyard to a safety line. In Demick's view, a worker had to be tied off to "a safety line or the bridge itself, i.e., cross-bracing of the bridge" (see supra, p 20), which raises the question whether a bridge cross-bracing is a safety device within the meaning of § 240. In any event, Claimant testified at one point that it was "impossible" for him to tie off. (see supra, p 8) This issue further stems from the fact that the precise method by which the safety line paralleled the length of the bridge from span to span, i.e., whether it was fastened to the piers at each end of a span in such a way that a worker could not cross a pier without unhooking from a safety line, or more specifically, whether a worker could step from the pier on to the scaffold without unhooking is not unequivocally resolved in the papers before the Court. This creates, in the Court's view, a bona fide issue, albeit one that obviously could have been easily resolved, that would defeat the State's cross-motion for SJ.


Even a cursory reading of the submissions to this Court on these motions reveals that there are issues of fact galore, most of which arise from the recorded gibberish found in the examinations before trial or the excerpts therefrom presented to the Court. Nonetheless, since both parties have moved for SJ and since both have an obligation to produce all the evidence within their ken (7 Weinstein Korn & Miller Civil Practice Law and Rules, § 3212.09) both, by doing so, have taken the position that there are no significant factual issues which would prevent SJ and the Court agrees. Since there is and will be no jury to address this Claim, this Court must determine what are the significant uncontroverted facts and the insignificant controverted facts and apply the law. Under the circumstances and in light of the submissions, the only purpose that a trial would serve would be to permit the Court to observe the demeanor of witnesses. By bringing these motions for SJ, the parties urge that the ultimate observation of the demeanor of the witnesses is not impediment to SJ relief and the Court agrees.[3]


What follows is what this Court finds is a chronology of the significant facts, not in controversy, and not significant facts, in controversy, gleaned from the submissions to this Court, which the Court finds dictate the granting of the Claimant's SJ motion since the facts not in controversy establish that Claimant was not a recalcitrant worker, as a matter of law.


Workers on the bridge rehabilitation project were required to be tied off to safety lines with lanyards attached to their safety harness at any time when they were on the project and over six feet above the ground. Claimant knew this and in fact told New York State inspectors at a safety meeting, about two weeks prior to his accident, that he always tied off 100 percent of the time and that he told younger workers that they had to be tied off 100 percent of the time. The tie off rule was strictly enforced. If a worker was seen not tied off a second time he or she was fired. Strict enforcement was demonstrated by the fact that, prior to the subject accident, the entire project was shut down for an hour so that a safety meeting could be conducted because a State inspector on the project observed a worker not even wearing her safety belt. At the time of the subject accident Claimant, with other workers, were in the process of erecting scaffolds which the workers would then utilize as platforms from which to sandblast and paint the bridge. The accident occurred when a previously erected scaffold between two of the bridge piers failed and Claimant fell to the river below. Just prior to the accident workers, including Claimant, had decided to break for lunch and they intended to leave their immediate work site and walk towards the shore of the river.[4] Having decided to break for lunch, Claimant and other workers were on the previously erected scaffold when it collapsed. At that time, the Claimant did not have his lanyard hooked to a safety line.


There are certain other factual issues which the Court has resolved, solely for purposes of the motions before it, in a light most favorable to the State. None, singularly or in combination, are sufficient to defeat Claimant's motion. The Court has assumed that at the time Claimant fell and at the location from which he fell there was an available safety line, previously installed, to which Claimant could have had his safety lanyard attached. Thus, all necessary safety devices were immediately available and Claimant had received specific instructions, not general or passive instructions, with regard to the use of those safety devices. The Court further assumes that Claimant did not have his lanyard in hand ready to attach it to the safety line (see supra, p 25, fn 3), but rather intended to walk to the shore without having his safety line attached, via the scaffold, to eat lunch.


Since negligence is not recalcitrance and since a workers refusal is rarely affirmatively announced, the factual scenarios that have led the Courts to conclude, on SJ motions, that a worker is recalcitrant as a matter of law or not recalcitrant as a matter of law, very considerably.[5]
and Cannata v One Estate, Inc., 127 AD2d 811.
In other words, recalcitrance, or lack thereof, must be decided based on the facts of each case.


The Third Department in addressing the subject of recalcitrant worker describes such a worker as one who "deliberately refused" to use available safety devices (see, Jastrzebski v North Shore School District, 223 AD2d 677, 678, affd 88 NY2d 946; Kaffke v New York State Electric & Gas, 257 AD2d 840, 841) and the Fourth Department noted a lack of evidence that a worker "purposely refused" to use safety equipment provided in concluding that a worker was not recalcitrant, as a matter of law. (see, Van Alstyne v New York State Thruway Authority, 244 AD2d 978, 979) Since it is difficult to imagine a factual scenario wherein a refusal, as such, could be anything other than deliberate and purposeful, one must weigh the significance of these semantic anomalies. In this Court's view, they are meant to emphasize the need for a finding of contemporaneous, cognizant rejection of an immediately available safety device at the time of the accident. Based on the uncontested facts and the contested facts viewed in a light most favorable to the State, the Court finds that there was no such rejection and that Claimant was not recalcitrant as a matter of law.


The factual chronology that leads to this result is simply stated. Claimant, and other workers, had decided to break for lunch and Claimant intended to walk on the previously erected scaffold to the shore line to eat lunch. He had ceased working, that is, he stopped installing scaffold on the other side of the pier in conjunction with the other workers and, of course, he had not been sandblasting or painting the bridge. In other words, his concentration was not on the work at hand, but rather on the route to his lunch. Claimant did not intend to hook his lanyard to the safety line but, rather, having stopped actually working on the project, he planned on walking on the previously erected scaffold to the shore.[6] It was at this time that the scaffold itself failed and Claimant fell to the river below.


When one considers the fact that the 100% tie off rule had been emphasized to a sufficient degree so that Claimant not only recognized it, but also lectured others with regard to its importance and that there is no evidence that Claimant had previously violated the 100 percent tie off rule (albeit one must wonder about prior lunch breaks), the conclusion is inescapable that Claimant's failure to hook his lanyard to the safety line, after he had stopped working and as he started his journey to lunch, was not a conscious rejection of a safety device, as a matter of law.


It was the State's burden to raise a triable issue of fact with regard to the issue of recalcitrant worker (see, Aragon v 233 West 21st Street, Inc., 201 AD2d 353), which it has failed to do.


In reaching the result herein, the Court has assumed for purposes of these motions, that the safety device, to wit the safety line, was immediately available (see, Jastrzebski v North Shore School District, 223 AD2d 677); that the direction to use the safety line 100% of the time was not a general or passive instruction but rather was immediate and active in a sense that the need for 100% tie off had been repeatedly stressed to the Claimant on an on-going basis and that during the project there had been strict enforcement of the 100% tie off rule. The Court has also considered that there is "no evidence that [Claimant] ever refused to use a safety [line]" or failed to use a safety line at any time prior to the subject accident. (cf, Kaffke v New York State Electric & Gas, 257 AD2d 840, 841)


In light of the foregoing, it is


ORDERED that Claimant's motion for SJ (Motion No. M-60503) is GRANTED and the State's Cross-Motion for SJ (Cross-Motion No. CM-60664) is denied.


The Clerk of the Court is directed to enter SJ on the issue of liability in favor of the Claimant.


June 6, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims



[1]
All "sic" inserts found in the transcripts of testimony are the transcriber's.
[2]
Claimant's entire examination before trial, conducted June 17, 1999 is attached to Claimant's counsel's affirmation in support (Paper No. 3) as Exhibit 2, whereas excerpts from Claimant's examination before trial are attached to the State's counsel's affidavit in opposition (Paper No. 5) as Exhibit 2. The last page of the examination before trial is included in both of the exhibits. Claimant did not sign either. The Court has reviewed the entire examination before trial as well as the excerpts that State's counsel has supplied as relevant to the State's argument.
[3]
There is one factual issue - whether, as Claimant testified, he had his lanyard in hand "ready to attach it" just before he fell (see supra, p 7) - the answer to which remains exclusively in Claimant's domain and the resolution of which, since it involves his intention, would ordinarily have to await trial.
[4]
The Court recognizes that the police accident report (Paper No. 3, Exhibit 4, see supra, p 18) wherein it is recorded that the foreman for Claimant's employer stated that "the crew was getting ready to break for lunch when the scaffolding collapsed" would not be admissible in evidence at a trial, insofar as that statement is concerned, since it is hearsay. The Court has not considered it. Be that as it may, there is no factual issue with regard to this since the uncontradicted testimony of Claimant (supra, p 10) and Claimant's co-worker Fiorelli (supra, p 18) with regard thereto went unchallenged.
[5]
e.g., Singh v Barrett, 192 AD2d 378, Aragon v 233 West 21st Street, Inc., 201 AD2d 353, Allan v Rochester Institute of Technology, 209 AD2d 929, Hickey v C.D. Perry & Sons, Inc., 223 AD2d 799, Vona v St. Peter's Hospital, 223 AD2d 903, Peterson v Barry, Bette & Led Duke, 171 Misc 2d 346, Watso v Metropolitan Life, 228 AD2d 883, Tennant v Curcio 237 AD2d 733, Isnardi v Genevese Drug Stores, 242 AD2d 671, Van Alstyne v New York State Thruway Authority, 244 AD2d 978, Job v 1133 Building Corp., 251 AD2d 459, Harrington v State of New York, 255 AD2d 819, Kaffke v New York State Electric & Gas, 257 AD2d 840, Mills v Niagara Mohawk, 262 AD2d 901, 692 NYS2d 493, Correia v Professional Data Management, Inc., 259 AD2d 60, Powers v Lino Dell Zotto, 698 NYS2d 74, Balthazar v Full Circle Construction Corp., 707 NYS2d 70,
[6]
(See supra, p 25, fn 3) Solely for purposes of addressing the subject motions, the Court has assumed that Claimant did not intend to hook his lanyard to the safety line as he walked to the shore.