New York State Court of Claims

New York State Court of Claims

SALANSKY v. STATE OF NEW YORK, #2000-005-579, Claim No. 96468, Motion Nos. M-62088, CM-62499


Claimant's motion for partial summary judgment pursuant to Labor Law §240(1) is denied and Defendant's cross-motion for summary judgment is granted in part and otherwise is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Paul William Beltz, P.C.By: Russell T. Quinlan, Esq.
Defendant's attorney:
Preston & MichelBy: John L. Perticone, Esq.
Third-party defendant's attorney:

Signature date:
June 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 11, were read on motion by Claimants for partial summary judgment on their behalf and on cross-motion by Defendant for summary judgment:
1, 2, 3 Claimants' Notice of Motion (M-62088) and Affirmation and Exhibits Annexed
4, 5, 6, 7, 8, 9 Defendant's Notice of Cross-Motion (CM-62499); Affidavits
  1. Claimants' Reply Affirmation and Exhibits Annexed
  2. Filed Papers: Claim
Upon the foregoing papers, and after hearing Russell T. Quinlan, Esq., on behalf of Claimants, and John L. Perticone, Esq., on behalf of Defendant, the motion is denied and the cross-motion is granted in part and otherwise denied.

In this proceeding Claimant[1] seeks partial summary judgment as to liability based upon the absolute liability provisions of Labor Law §240(1) relating to gravity-related accidents. The Defendant opposes that relief, and in a cross-motion seeks to dismiss the causes of action sounding in common law negligence and Labor Law §200, as well as dismissal of the §240(1) claims. There was no opposition to the cross-motion with respect to common law negligence or §200, and thus, to that extent, the cross-motion is granted.

Claimant was employed by Accadia Enterprises, Inc. (Accadia), which had been awarded a contract by the Defendant to reconstruct a portion of State Route 98 in the Village of Elba. On April 3, 1997, Claimant was injured at the construction site. As described by Defendant, the contract required Accadia to install a water or pipe line beneath the road surface, and that on the date and time of the accident, a trench perhaps eighteen to twenty feet deep had been excavated across Route 98. Accadia was purportedly positioning two shields in the trench, one atop the other, to protect the workers from the risk of collapse of the side walls of the trench.

Defendant proffers that the top-most shield reached the grade of the roadway, and that the Accadia owner, one Paul Marianaccio, was at the bottom of the trench with another worker, working on the placement of a "drop inlet" which was being lowered into the trench by a crane operator. As the drop inlet was being lowered, it brushed the top (upper) shield, causing it to shift "slightly" from its alignment with the bottom shield.

Claimant alleges that while the drop inlet was being lowered, he was standing at the edge of the trench holding onto a chain which was attached to the upper shield. When the top shield shifted after contact with the drop inlet, Claimant fell to the bottom of the trench sustaining the injuries alleged herein. Is this situation covered by the statutory umbrella of Labor Law §240(1), or not?

Claimant asserts all the right things, describing the elevation and depth of the trench, describing his presence at the edge of the trench, and as best possible, covering the period immediately preceding the accident, where an individual spotted Claimant holding the chain at the edge of the trench, and the limited vision of the operator lowering the drop inlet. Furthermore, Marianaccio was in the trench and observed the Claimant when Claimant fell on him, but avers that he had not known that Claimant was anywhere near the edge of the trench (Marianaccio's Affidavit appended to the Defendant's cross-motion). In short, however, while no one saw Claimant at the instant before he fell and this could be classified as an unwitnessed accident, there is enough sworn deposition testimony to satisfy me that Claimant was holding the chain which was attached to the upper shield, and that when the shield was shifted off line from the inadvertent contact with the drop inlet, Claimant, whilst holding the chain and not letting go, was pulled into the trench. If that was all that needed to be shown to satisfy §240(1), liability would be beyond debate under the statute, and I would be considering the amount of damages. However, there are some buts.

First, this situation does not fit into the typical recalcitrant worker scenario, even though factual disputes exist as to whether Claimant was told to hold the chain by Marianaccio, and whether Claimant's work required him to be holding the chain. But in order to benefit from the recalcitrant worker defense, a defendant must demonstrate that a claimant deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor (Hagins v State of New York, 81 NY2d 921). Here, while not distinctively denominated by Defendant, the argument is not that claimant refused to use any available safety device after being ordered to do so, but more that he was performing a task that he was neither required nor assigned to perform. Thus to the extent that a recalcitrant worker theory is espoused, it must be rejected.

Furthermore, as the Court of Appeals instructed in Hagins v State of New York, supra, at 922:
allegations that claimant had repeatedly been told not to walk across the abutment are not alone sufficient to create a triable issue of fact under the "recalcitrant worker" doctrine that was recognized in Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824), since that defense is limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner [citation omitted]. Furthermore, the State cannot rely on claimant's own negligence in using an unsafe route to cross the road as a "supervening cause" of his injuries, since the accident was plainly the direct result of the failure to supply guardrails or other appropriate safety devices (see, id.).

Similarly unavailing is the State's alternative claim that it could not be held liable if the trier of fact adopted its factual contention that the abutment from which claimant fell was not part of his work area at the time of the accident.... Under these circumstances, the fact that the abutment itself may not have been the focus of claimant's work at the time of the accident is not alone a sufficient ground for absolving the State of liability.

But here, what the Defendant appears to allege sounds more as a rogue or insubordinate worker, one who went somewhere and did something that he was not only not assigned to do, but actually forewarned not to do. Thus, while not meeting the classical recalcitrant worker model, the disputed factual assertions here raise the sceptre of more intentional conduct, to wit, putatively disqualifying behavior. I am compelled to follow the rules laid down by the Court of Appeals in Hagins, supra,[2] and its progeny, and I am disinclined to excavate a new path broadening the definition of a recalcitrant worker to include one who disobediently meanders to a location on the work site to which he or she was not assigned. The factual disputes affect the question of whether Claimant encountered the normal and usual risks of the workplace.

Indeed, Defendant raises questions of fact relating to Claimant's presence at the site of the trench, and whether he was directed or authorized to be there. This argument has a facially alluring appeal, to wit, does this raise evidentiary disputes that may only be resolved at a trial where I am able to adjudge the credibility of the witnesses? Certain sworn statements, made under penalty of perjury, i.e., by Marianaccio, the Accadia owner, as well as those of Sandra Collins, the State Inspector, are in conflict with other sworn statements, are alleged to be incredible and unworthy of belief, and putatively serve to demonstrate the need for evidentiary proceedings. "An instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 556). But here Claimant was purportedly warned by individuals including Marianaccio, Pamela Brown, a former employee of Accadia who allegedly told Claimant to stay in his truck, and by Collins, the State Inspector, who allegedly told Claimant to "get down off the shield" and that it was not safe. I find that sufficient questions of relevant facts are raised requiring a trial. Foremost, I have the conflicting sworn assertions regarding the question of whether Marianaccio directed or specifically did not direct Claimant to hold the chain that eventually pulled Claimant into the trench.

In support of its cross-motion dismissing the §240(1) claim, Defendant's most compelling argument relies upon Gottstine v Dunlop Tire Corp., 272 AD2d 863, holding that a worker who falls into a trench from the side is not covered by Labor Law §240(1) because such an injury results from the usual and ordinary dangers of a construction site (see, e.g., Bradshaw v National Structures, 249 AD2d 921; Williams v White Haven Mem. Park, 227 AD2d 923). Indeed those decisions have a superficial allure, and I am aware of Defendant's argument that there was no Fourth Department case where liability would attach pursuant to §240(1) when a worker falls into a trench, but where "[I]ssues of fact preclude summary judgment to either party with respect to the Labor Law §240(1) claim" (Gottstine v Dunlop Tire Corp., supra, 272 AD2d 863, 864), I must decide whether the fall was part of the normal risks one assumed on this job.

I have reviewed the Defendant's recent reference to Edwards v C & D Unlimited, 289 AD2d 370, but find it distinguishable, because it involves injury due to the ground giving way, a circumstance not present here. Claimant's position is strengthened by the Fourth Department's recent review of a claim arising out of a fall into an excavated trench (Congi v Niagara Frontier Transportation Authority, _____ AD2d ____, 741 NYS2d 629, May 3, 2002, where the Court affirmed the granting of partial summary judgment on liability under §240(1) when the plaintiff was injured while attempting to descend into an excavated trench to tie together rebar rod, finding that a fall into an "excavated trench is ‘the type of elevation-related risk for which Labor Law §240(1) provides protection' (citations omitted), and the absence of any safety device to protect plaintiff from the risk of injury when accessing the work area in the trench was the proximate cause of plaintiff's injuries (citations omitted)."

If it can be established at trial that Claimant was a truck driver with only three days on this job, whose work duties would not ordinarily bring him to the trench, liability will be premised on (1) the disputed direction to hold the chain at the edge of the trench, and (2) the Defendant's failure to provide safety devices when Claimant was placed at the trench site. I must adjudge the credibility of the witnesses, primarily Claimant and Marianaccio, with respect to the purported assignment to hold the chain, and that must be done at a trial. For the edification of the parties, and whatever interlocutory appellate review might ensue herein, if I find that Claimant was assigned to such task, then liability would likely attach, but if I were to find that he was not so assigned, then the risk of perambulating near a trench would appear to be part of the normal and usual risks of the workplace, not warranting the provision of safety devices.

Mariani v New Style Waste Removal Corp., 269 AD2d 367, supports the resolution at trial of such factual disputes. In Mariani, where the plaintiff was allegedly injured when he slipped and fell from the top of a ten-foot-high retaining wall, there were no safety devices provided or in use, but there was a question whether he had been directed to scale the wall or store materials on top of it. The majority affirmed the denial of summary judgment and held that under the circumstances presented in that case, a question of fact exists on the issue of whether §240(1) was violated. While the dissent urged that the allegations were insufficient to create a triable issue of fact, since the plaintiff's negligence in doing so was not a defense to the absolute liability imposed by §240(1), Mariani has not been negatively addressed and remains good law.

Thus the motion and cross-motion with respect to Labor Law §240(1) are denied, and this matter shall be scheduled for a calendar call.

June 10, 2002
Rochester, New York

Judge of the Court of Claims

[1] The claim of Valerie Salansky is derivative, and for the ease of reference, the term Claimant shall mean Claimant David Salansky only.
[2] Lest it go unstated, I was the trial judge in Hagins, an experience which reinforces my respect for the appellate rulings therein.