SALANSKY v. STATE OF NEW YORK, #2000-005-579, Claim No. 96468, Motion Nos.
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.
DAVID SALANSKY AND VALERIE SALANSKY, HIS WIFE
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DONALD J. CORBETT, JR.
Paul William Beltz, P.C.By: Russell T. Quinlan, Esq.
Preston & MichelBy: John L. Perticone, Esq.
June 10, 2002
See also (multicaptioned
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
1, 2, 3 Claimants' Notice of Motion (M-62088) and Affirmation and Exhibits
4, 5, 6, 7, 8, 9 Defendant's Notice of Cross-Motion (CM-62499); Affidavits
Claimants' Reply Affirmation and Exhibits Annexed
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
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
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
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,
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
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
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
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
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
HON. DONALD J. CORBETT, JR.
Judge of the Court of
The claim of Valerie Salansky is derivative,
and for the ease of reference, the term Claimant shall mean Claimant David
Lest it go unstated, I was the trial judge in
, an experience which reinforces my respect for the appellate