underlying claim arose when
he fell from a scaffold while painting an overpass spanning the Gowanus
Expressway approach to the Verrazano-Narrows Bridge in Brooklyn. By this
motion, claimant seeks summary judgment on the issue of liability under Labor
Law §240.1, which the defendant opposes. The facts shall accordingly be
presented in the light most favorable to the defendant.
Claimant was an employee of Liberty Maintenance, Inc., which had a contract
with the State of New York to paint ten bridges over the Gowanus and Belt
parkways in Kings County. On August 9, 1997 an hour or two before dawn, Smalios
was painting below the overpass, working from a scaffold that was suspended from
a cable. Only five feet off the ground, the scaffold had no guard rails. At
some point, the scaffold swayed – or swung from side to side – and
Smalios fell to the ground.
* * *
An injury that results from an elevation-related risk imposes absolute
liability on the owner of the construction site. To prevail under §240.1,
a claimant must prove that the scaffold did not provide proper protection and
that such failure was a proximate cause of his or her injury. Bland v
Manocherian, 66 NY2d 452, 497 NYS2d 880 (1985). However, a worker who was
"recalcitrant" as to the use of safety equipment may not recover under the
statute. Jastrzebski v North Shore School District, 223 AD2d 677, 637
NYS2d 439 (2d Dept 1996), affd 88 NY2d 946, 647 NYS2d 708 (1996).
Putting to one side the recalcitrant worker inquiry, the facts of Whalen v
F.J. Sciame Construction Co., Inc., 198 AD2d 501, 502, 604 NYS2d 174, 175
(2d Dept 1993) are in its essentials comparable to this matter: "defendants
failed to rebut the plaintiffs' contention that Robert Whalen fell from the
ladder because it was unsecured, and was caused to sway when a person was on
it." The appellate court held that plaintiffs were entitled to summary judgment
on liability under §240.1 even though there was an open question of fact as
to the precise manner in which Whalen's accident occurred.
The Second Department has consistently ruled that whether a scaffold provided
proper protection is for the trier of fact only in those instances when the
scaffold did not "move, collapse or otherwise fail to perform its function of
supporting" the worker who fell. Mejia v African Methodist Episcopal Allen
Church, 706 NYS2d 450, 451 (2d Dept 2000); Romano v Hotel Carlyle Owners
Corp., 226 AD2d 441, 641 NYS2d 50 (2d Dept 1996). Wright v State of New
York, the companion case to Bland v Manocherian, supra, and relied
upon by the defendant, is thus inapposite here.
While there are statutory and regulatory provisions which specify that
scaffolds of a particular height have
, the actual height or differential
of an elevation-related risk is immaterial to a finding under subdivision one of
§240. Rocovich v Consolidated Edison Co.
, 78 NY2d 509, 577 NYS2d
219 (1991). Nor do we have any affidavit, deposition testimony or photograph
that suggests that proximate cause is at issue. See Felker v Corning
, 90 NY2d 219, 660 NYS2d 349 (1997).
Claimant was not wearing a safety belt or harness when he fell. "Everywhere
else" on the job, he and his coworkers did wear them, but "because we were at
the corner, we didn't use any safety belts" -- even though safety lines were
installed and ran perpendicular to the bridge and the various painters'
scaffolds (Smalios January 12, 1999 dep, pp 88-89; Frangos aff, ¶9).
Smalios was not instructed that night to use a safety belt; nor did he refuse to
use any available safety equipment.
In view of these facts, Smalios was not a recalcitrant worker within the
meaning of Jastrzebski, supra
. Mr. Jastrzebski had been on a ladder
trying to affix plywood to a wall, when his supervisor approached, informed him
that the ladder was "no good"
and then pointed
to a scaffold that was in place and directed Jastrzebski to use it. Plaintiff
said he would do so, but as soon as the supervisor turned to walk away, he
reclimbed the ladder -- and then fell. The Jastrzebski
line of cases
requires a deliberate failure to heed an "immediate and active direction by the
For example, in Lozada v
State of New York
, 700 NYS2d 38, 40 (2d Dept 1999): "appropriate safety
devices were made available to [Lozada, who] had been instructed on numerous
occasions to use the devices, and declined to do so."