Claim No. 98605 alleges that on June 4, 1998, claimant, an employee of Worth
Construction, was working on a 12 foot A-frame wooden ladder at Bedford Hills
Correctional Facility, when the ladder collapsed, causing claimant to fall to
the floor and sustain injuries. The claim further alleges, inter alia,
that defendant failed to ensure that the ladder was properly placed and secured
so as to provide claimant with proper protection as he worked at an elevated
height. Claimant seeks summary judgment based on Labor Law § 240(1).
Labor Law § 240(1) requires that safety devices, such as ladders, be so
"constructed, placed and operated as to give proper protection" to a worker.
The statute has been interpreted to impose absolute liability for a breach which
has proximately caused an injury (see, Rocovich v Consolidated Edison
Co., 78 NY2d 509; Zimmer v Chemung County Performing Arts, 65 NY2d
513, 521). Negligence, if any, of the injured worker is of no consequence
(see, Zimmer v Chemung County Performing Arts,
In support of the motion, claimant submits his affidavit which states that he
was working as a laborer/mason tender during the construction of a medical unit
building. It is undisputed that the State owned the facility and the building
under construction. On the morning of the accident, claimant's foreman directed
claimant to utilize a ladder and prepare the walls on the second floor for
painting. Claimant's affidavit states:
I was instructed to setup the ladder in an unusual manner. Two legs of the
A-frame ladder rested on the stair platform while the other two legs were
supported by cinder blocks placed on the third step down from the platform.
This enabled me to reach all wall areas within the stairwell. As I began to
ascend the ladder, reaching the second right step from the top, the ladder
sudden [sic] collapsed and I fell below a distance of approximately 15 to 18
(Claimant's Supporting Affidavit, ¶ 4).
Claimant also submits the EBT testimony of Jonathan P. Morgan, an employee of
the New York State Office of General Services, Division of Construction (Ex. 2).
Morgan, an Assistant Building Construction Engineer, responded to the scene of
claimant's accident, shortly after claimant's fall, and observed claimant laying
on top of the ladder (Ex. 2, p. 60). Morgan stated that claimant, "was
basically in the position - - I guess after he fell he hadn't moved" (Ex. 2, p.
62). Morgan observed one or two cinder blocks on the landing in the stairwell
(Ex. 2, p. 66). When asked, "Do you know whether or not the ladder that he
[claimant] was working on collapsed?" Morgan responded, "Yes"." Morgan was
then asked, "What is it that you know?" Morgan responded, "That he was on the
ladder when it fell" (Ex. 2, p. 71).
Defendant opposes the motion on the sole ground that the accident was not
witnessed and therefore, there is nothing to corroborate claimant's account of
how the accident occurred. Defendant offers no evidence to contradict
claimant's account that he set up the ladder according to the foreman's
First, summary judgment will not be precluded merely because claimant was the
sole witness to an accident. In Klein v City of New York, 89 NY2d 833, a
worker commenced an action pursuant to Labor Law § 240(1) alleging that he
was injured when the ladder which he had ascended slipped out from under him and
caused him to fall. Defendant conceded that the floor could have had some
degree of greasiness, slickness or slipperiness. Plaintiff, "who was the sole
witness to the accident," testified that, after his fall, he observed some film
on the floor where he had placed the ladder (Id. at 834). The Court of
Appeals held that plaintiff had established a prima facie case that defendant
violated Labor Law § 240(1) by failing to ensure the proper placement of
the ladder due to the condition of the floor and that defendant had not
presented any evidence of a triable issue of fact relating to the prima facie
case or plaintiff's credibility. Accordingly, the Court of Appeals found that
plaintiff was properly awarded summary judgment. Consistent with such holding,
in Masiello v Belcastro, 237 AD2d 335, the Second Department held that
the fact that no one witnessed plaintiff's fall does not warrant denial of
plaintiff's summary judgment motion based upon Labor Law 240(1).
Second, unlike the cases cited by defendant, claimant provides, in addition to
his own sworn statement, the EBT testimony of defendant's employee, Jonathan P.
Morgan, who responded to the accident scene shortly after claimant's fall.
Significantly, Morgan testified that he observed claimant laying on top of the
collapsed ladder. Morgan further testified that he knew that claimant "was on
the ladder when it fell" (Ex. 2, p. 71). Morgan also saw one or two cinder
blocks on the landing in the stairwell which adds credence to claimant's sworn
statement that, according to his foreman's instructions, claimant had set two
legs of the ladder on the stair platform and the other two legs were supported
by cinder blocks placed on the third step down from the platform.
Claimant's submissions establish prima facie entitlement to judgment as a
matter of law on the issue of liability pursuant to Labor Law § 240(1)
(see, Gordon v Tishman Constr. Corp., 264 AD2d 499 [plaintiff's
uncontradicted deposition testimony sufficiently established prima facie
entitlement to summary judgment on Labor Law § 240(1) claim]). Claimant
demonstrates that he sustained injuries when the unsecured ladder, upon which he
was standing, collapsed beneath him (see, Public Adm'r of Kings County
v Tomassetti, ___AD2d___, 706 NYS2d 350 [plaintiff's decedent properly
awarded summary judgment where unsecured ladder, upon which decedent was
working, collapsed beneath him]; Madden v Trustees of Duryea Presbyt.
Church, 210 AD2d 382 [plaintiff who fell when unsecured ladder slipped from
underneath him was awarded summary judgment where defendant failed to show that
injuries were caused by anything but unsecured ladder]).
Defendant's opposition to the motion, an affirmation of counsel, is unavailing
(see, Labodin v State of New York, 242 AD2d 563). Specifically,
"the defendants were unable to show that the failure to secure the ladder was
not a substantial factor leading to the [claimant's] injuries" (Johnson v
Rapisarda, 262 AD2d 365, 366).
motion is GRANTED.