New York State Court of Claims

New York State Court of Claims

KORTHAS v. THE STATE OF NEW YORK, #2000-009-011, Claim No. 89890


Claimant sought damages alleging a violation of Labor Law § 241(6). Although the Court found that 12 NYCRR § 23-1.16(b) and (d) established a specific standard of conduct, the Court did not find that the regulations were violated and therefore dismissed the claim

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):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: John C. Setright, Esq.,Of Counsel.
Defendant's attorney:
BY: Kevin E. Hulslander, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
December 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)
Claimant seeks damages for injuries he allegedly sustained on February 2, 1993, while he was employed by a company contracted to make renovations to Lock 30 on the Erie Canal in Macedon, New York. These claims were jointly tried as to liability, and the decision herein pertains solely to this issue.

The facts of this case are essentially uncontroverted. On February 2, 1993, claimant, an employee of Over and Under Piping Contractors, Inc., was working on a ledge approximately 18 feet from the bottom of the lock, where he was jackhammering concrete out of the canal lock wall. Claimant was wearing a safety belt and had hooked the tail line on his safety belt to a railing of a scissor truck platform, which was used to raise claimant and a coworker, Lee Bremmerman, to the worksite. At approximately 11:00 a.m. on that date, his coworker had to go to the bathroom, and Mr. Bremmerman then proceeded to lower the lift to which claimant had attached his tail line. As the lift was lowered, claimant was pulled down from a standing position to the surface of the ledge, where he alleges he was forced against his jackhammer, causing him to injure his back. Lee Bremmerman testified that he had lowered the lift about two and one-half feet when he heard claimant shout, and he immediately stopped the lift. He then raised the lift so that claimant could unhook his line from the railing. Claimant did not fall from the ledge.

Although the original claim alleged several causes of action, this Court had previously ruled that the only cause of action properly before the Court is the cause of action asserted under Labor Law § 241(6).[1]
This statute imposes a non-delegable duty upon an owner to comply with the rules and regulations promulgated by the Commissioner of Labor. To prevail, a claimant must establish a violation of a specific standard of conduct, as opposed to a rule premised upon general safety standards, and that the violation was a proximate cause of the injuries (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).
In this claim, claimant alleges a violation of 12 NYCRR, § 23-1.16(b) and (d), regarding usage of safety belts, harnesses, tail lines and lifelines.

Section 23-1.16(b) provides:
(b) Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet.

Section 23-1.16(d) provides:

(d) Tail lines. The length of any tail line shall be the minimum required in order for an employee to perform his work, but in no case shall be longer than four feet. Such tail line shall be attached to a hanging lifeline or to a substantial structural member at a point no lower than two feet above the working platform or working level. Tail lines shall be first grade manila or synthetic fibre rope at least one-half inch in diameter with a breaking strength of not less than 4,000 pounds or shall be fabricated of other approved materials.

The Court finds that on their face, these rules establish a specific standard of conduct, rather than a general safety standard, and hence Labor Law § 241(6) is applicable to the facts of this claim.

At the trial, claimant Thomas Korthas testified on his own behalf. He testified that on the day of the accident, he had hooked his tail line onto the railing of the scissor truck platform because no lifeline had been provided. Furthermore, he testified that no lifelines had been provided for approximately one month before the accident occurred.

In direct contrast, the State produced four witnesses, all of whom were employed on the date of the accident by Over and Under Piping, the company which had contracted with the State to perform the renovation at Lock 30. These four witnesses uniformly testified that lifelines were present at the job site throughout the course of the project and in particular, on the day of the accident. Further testimony established that weekly meetings were held to discuss safety matters, including the use of lifelines, and that the company had supplied a safety plan to the State with detailed provisions regarding safety equipment, which plan was acceptable to the State.

Claimant acknowledged in his testimony that he could not read or write, and the Court, through its observations, concludes that this gentleman has difficulty in understanding and remembering a great deal of what may or may not have transpired in connection with these claims. Of particular significance to the Court is the fact that claimant admitted that at the time of the accident, he did not even know what lifelines were. Claimant stated that he learned about lifelines in the course of preparation for the trial.

The Court, after considering the credible evidence, hereby concludes that the State is not liable for the injuries which were sustained by claimant. The sole issue to be determined at this trial was whether a lifeline existed to which the claimant could attach the tail line to his safety belt. Based on the totality and quality of testimony presented, the Court concludes that such a lifeline did exist. The Court further concludes that the sole and proximate cause of claimant's injuries was his failure to properly utilize the safety device provided to him. As such, the Court does not find any violation of NYCRR§ 23-1.16(b) and (d).

In conclusion, the Court must also respond to the assertion made by claimant's attorney that a certain video tape should have been admitted into evidence. At trial, the Court determined that a proper foundation for the introduction of this video tape had not been established, and therefore did not allow it to be admitted into evidence. The Court observed that a label was affixed to the tape, marked with a date postdating the accident. At trial, claimant could not establish when the video was taken, nor when the label was affixed to the tape. Claimant's counsel, in an attempt to lay a foundation, then requested a continuance of the trial to provide him with an opportunity to obtain the testimony of the person who supposedly made the video tape, a retired State employee who no longer resides in the State of New York. This request was denied by the Court.

The Court finds the continued assertion by claimant's counsel to be bordering on frivolous. Clearly, a proper foundation was not made for admissibility of the video tape. With regard to the request for a continuance, the Court notes that claimant's counsel was aware of the existence of this video tape for a period of time in excess of four years. He had ample time during the discovery process to insure that a proper foundation for admissibility was established. Furthermore, even after discovery was completed, and the claim was declared ready for trial by claimant's filing of a note of issue on September 10, 1996, the Court held this trial in abeyance pending appellate review of its decision and order which had dismissed certain causes of action of the claim.[2]
Additionally, when this Court did schedule the trial herein, it gave the parties in excess of four months notice to insure that both counsel were given adequate time to prepare.
In sum, claimant's counsel did not convince the Court that any additional time was warranted, or that any further efforts to establish a proper foundation for the admissibility of the video tape would be successful. The Court therefore excluded the attempt to admit the video tape, and refused to grant a continuance for the purpose of attempting to depose the out of state witness. Finally, the Court does not find that claimant's counsel has set forth any newly discovered evidence in his post trial memorandum which would lead the Court to reconsider its decision made at trial. Based upon all of the above, the Court finds that the claimant has failed to meet his burden of establishing liability against the defendants and as such, the claims must be and hereby are dismissed.


December 18, 2000
Syracuse, New York

Judge of the Court of Claims

[1] See Decision and Order to Motion No. M-55937, Cross-Motion No. CM-55989, dated December 26, 1997.
[2] See Footnote No. 1.