New York State Court of Claims

New York State Court of Claims

LUCAS v. THE STATE OF NEW YORK, #2000-007-051, Claim No. 99889, Motion No. M-61930


Claimants moved for partial summary judgment on a cause of action premised upon Labor Law § 240. Motion denied.

Case Information

TONY P. LUCAS and PAMELA J. LUCAS The court has amended the caption, sua sponte, to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has amended the caption, sua sponte, to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Poissant & Nichols, P.C.(Stephen A. Vanier, Esq., of Counsel)
Defendant's attorney:
Law Offices of Kris T. Jackstadt(Robert S. Bruschini, Esq.)
Third-party defendant's attorney:

Signature date:
September 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants have made an application for an order granting partial summary judgment on the issue of liability. The return date of the motion was August 18, 2000. The following papers were read and considered by the court:

Notice of Motion, Affidavit of Tony P. Lucas,

Affidavit of Stephen A. Vanier, Esq., Annexed
Exhibits 1, 2, 3, 4

Affirmation in Opposition of Robert S.
Bruschini, Esq., Annexed Exhibits 5, 6

Filed Papers: Claim, Answer 7, 8

On December 5, 1998, claimant Tony P. Lucas[1] was working on the construction site for Upstate Correctional Facility in the Town of Malone, Franklin County. He was employed by B.S. McCarey, a subcontractor on the project, and his duties on December 5 included constructing a scaffolding on the site. Claimant had constructed three "jumps" of scaffolding, each jump was reportedly six feet six inches in height, and therefore the total height of the scaffolding was approximately 20 feet. He stated that he was on top of the scaffolding when he noticed a bent pin. Claimant placed the claw of his hammer on the pin intent on bending it back into position. According to claimant, his hammer "popped out" while he was prying on the pin (Exhibit A annexed to Bruschini Affirmation, at 45). Claimant lost his balance and fell.

Claimants commenced actions in Supreme Court against the contractor and in the Court of Claims against the purported owner, alleging violations of Labor Law § 240, § 241(6) and § 200. They have now moved for summary judgment pursuant to section 240. Claimants argue that the scaffolding did not provide proper protection because it did not have safety rails and, furthermore, that the bent pin constituted a defective condition in the scaffolding that was a cause of the unfortunate fall.

Summary judgment is a drastic remedy that may be employed only when it is clear that no triable issue exists (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697). The court must review the evidence presented in the light most favorable to the party opposing summary judgment (Currier v Wiltrom Assocs., 250 AD2d 956).

Labor Law § 240 requires contractors and owners of certain construction sites to furnish or erect scaffolding and various other safety devices so as to give proper protection to individuals working at the site. The statute is liberally construed to accomplish the legislative purpose of protecting workers against the special hazards of gravity-related accidents such as those implicated by elevated work sites (see, e.g., Rocovich v Consolidated Edison Co., 78 NY2d 509; Corey v Gorick Constr. Co., AD2d , 706 NYS2d 512). Where a worker is not provided with any safety devices and such worker is injured in an elevation-related accident, liability attaches under section 240(l) as a matter of law (see, e.g., Zimmer v Chemung County Performing Arts, 65 NY2d 513; Johnson v Packaging Corp. of Am., AD2d , 710 NYS2d 699). If, however, a worker is injured in a fall at a site where an elevation-related safety device was provided, the issue of whether the device provided proper protection within the meaning of Labor Law § 240(l) is ordinarily a factual issue unless the device collapsed, slipped or otherwise failed to perform its function (Smith v Pergament Enterprises of S.I., AD2d , 706 NYS2d 505; Briggs v Halterman, 267 AD2d 753).

Claimants contend that the absence of a safety rail on the scaffolding provides a premise for liability. Labor Law § 240(2) requires a safety rail on scaffolding that is more than 20 feet from the ground. The papers before the court, however, fail to conclusively establish that claimant fell from a height of more than 20 feet. In his affidavit, claimant states that the scaffolding was "approximately" 20 feet high (Lucas Affidavit, par. 3). At his deposition claimant testified that he fell from the third jump of scaffolding and that each jump was six feet, six inches high (Exhibit A annexed to Brushini Affirmation, at 28). Although adjustments to the scaffolding and the presence of the planks used on the scaffolding may have increased the total height, a factual issue nevertheless exists regarding whether claimant fell from more than 20 feet. In a fall from 20 feet or less, the absence of a safety rail is not conclusive on the issue of section 240 liability, but is a relevant factual issue when considering the question of whether the statutorily mandated proper protection was provided (Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 855). Since a factual issue exists regarding the height from which claimant fell, summary judgment is not appropriate.

Claimants further argue that claimant was not provided proper protection within the meaning of section 240 because he fell while attempting to straighten a bent pin in the scaffolding. Since it is undisputed that a relevant safety device (i.e., scaffolding) was present at the work site, the germane inquiry becomes whether the court must conclude as a matter of law that the scaffolding collapsed, slipped or otherwise failed to perform its function (Smith v Pergament Enterprises of S.I., supra; Briggs v Halterman, supra). A board of a scaffolding suddenly kicking up and causing a worker to fall is an example of a "collapse" that would establish liability as a matter of law (see, Davis v Pizzagalli Constr. Co., 186 AD2d 960). Similarly, a ladder placed in a position where it could be struck by falling material does not provide proper protection (see, Quinlan v Eastern Refractories Co.., 217 AD2d 819). Where a worker alleged, however, that he slipped on wet cement on the surface of an otherwise safe scaffolding, the Appellate Division found questions of fact existed regarding section 240 liability (Beesimer v Albany Ave./Rte. 9 Realty, supra). Moreover, confusion in the record as to the reason for a fall from a safety device cannot support liability as a matter of law since a mere fall is insufficient to establish that appropriate protection was not provided (Briggs v Halterman, supra).

Here, claimant's task at the work site was to construct scaffolding. While he was carrying out his assigned task, he attempted to straighten a bent pin in the scaffolding. The claw of his hammer allegedly slipped off the pin, he lost his balance and fell. The evidence does not reflect that the scaffolding swayed or that a part of the scaffolding upon which he was working failed to support him. Construed favorably to defendant, the evidence reflects that claimant was working on his assigned task when he lost his balance and fell. The fact that his assigned task involved the scaffolding is insufficient to establish liability without a showing that the scaffolding collapsed, slipped or otherwise failed to perform its function. The court is not persuaded that claimants have established that there are no factual issues regarding whether the subject scaffolding collapsed, slipped or failed to perform its function. Judgment as a matter of law is thus not appropriate.

It is

that claimants' motion is denied.

September 18, 2000
Plattsburgh, New York

Judge of the Court of Claims

The claim of Pamela J. Lucas is derivative. References herein to claimant are to Tony P. Lucas.