New York State Court of Claims

New York State Court of Claims

CENSI v. THE STATE OF NEW YORK, #2000-010-055, Claim No. 98605, Motion No. M-61870


Synopsis


Claimants' motion for summary judgment on liability

Case Information

UID:
2000-010-055
Claimant(s):
MARK CENSI AND KERRI CENSI
Claimant short name:
CENSI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98605
Motion number(s):
M-61870
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SACKS AND SACKS, ESQS.By: Andrew R. Diamond, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: Ahmuty, Demers & McManus David S. Conklin, Of Counsel
Third-party defendant's attorney:

Signature date:
August 23, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimants' motion for summary judgment on liability:
Notice of Motion, Supporting Affidavit of Mark Censi (hereinafter "claimant")[1] and Exhibits, Memorandum of Law................................................................................1

Attorney's Opposing Affirmation............................................................................2

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, supra).

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 feet.


(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 directive.

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).

Accordingly, claimant's[2] summary judgment motion is GRANTED.


August 23, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
The claim of Kerri Censi, claimant's wife, is derivative.
[2]
The derivative claim of claimant's wife also warrants summary judgment (see, Spose v Ragu Foods Inc., 124 AD2d 980).