New York State Court of Claims

New York State Court of Claims

SMALIOS v. THE STATE OF NEW YORK, #2000-016-034, Claim No. 98524, Motion No. M-60953


Claimant's summary judgment motion granted on liability in Labor Law §240.1 case granted.

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):

Alan C. Marin
Claimant's attorney:
Friedman & SimonBy: Roger L. Simon, Esq.
Defendant's attorney:
Allen Johnson & Lonergan, LLPBy: Michael J. Lonergan, Esq.
Third-party defendant's attorney:

Signature date:
May 30, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Nicholas Smalios'[1] 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.

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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 guardrails[2], 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 Inc., 90 NY2d 219, 660 NYS2d 349 (1997).
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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"[3] 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 supervisor."[4] 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."
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In view of the foregoing,[5] IT IS ORDERED that the motion of Nicholas Smalios and Rose Smalios for summary judgment on liability under Labor Law §240 is granted. The parties will be contacted to schedule a conference prior to the trial on damages.

May 30, 2000
New York, New York

Judge of the Court of Claims

[1] References herein will be to Nicholas Smalios and to "claimant" in the singular inasmuch as the claim of Rose Smalios is derivative of her husband's.
[2] See subdivision 2 of Labor Law §240.2, which applies to scaffolds higher than 20 feet, and 12 NYCRR §23-5.1(j)(1) for scaffold heights over seven feet.
[3] 223 AD2d at 678, 637 NYS2d at 441.
[4] 223 AD2d at 680, 637 NYS2d at 441.
[5]The papers reviewed were (i) Claimants: Notice of Motion and Affirmation which includes exhibits A through C and affidavit from Nicholas Smalios and Sakelarlos Petriakis, Reply Affirmation with exhibit A, and a Memorandum of Law; (ii) Defendant: Answering Affidavit containing exhibits A and B, affidavits from Philip Salerno (with two exhibits) and Manuel Frangos, January 12, 1999 Deposition of Nicholas Smalios, and a Memorandum of Law.