New York State Court of Claims

New York State Court of Claims

FLAGG v. THE STATE OF NEW YORK, #2000-016-055, Claim No. 97364, Motion No. M-61649


Partial summary judgment on issue of liability denied

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):

Claimant's attorney:
Brecher, Fishman, Pasternack, Popish, Feit, Heller, Rubin & Reiff, P.C.By: Lonny R. Levitz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Pollack & Shein, P.C.By: Jeffrey S. Shein, Esq.
Third-party defendant's attorney:

Signature date:
July 31, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Gordon Flagg,[1]a surveyor, fell from an abutment where the Long Island Expressway connects with the Northern State Parkway in Nassau County. By this motion, opposed by the defendant, claimant seeks summary judgment on the issue of liability under what is commonly known as the scaffold law.

Labor Law §240.1 imposes absolute liability on the owner of a construction site for elevation-related risks "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Unlike many §240.1 cases, this matter does not turn on the type of fall or how the injury occurred, but whether the "work in which [claimant] was engaged when he was injured fell within the ambit of Labor Law §240(1)." Martinez v City of New York, 93 NY2d 322, 324, 690 NYS2d 524, 525 (1999). There the Court of Appeals rejected a test that focused on whether the "work was an ‘integral and necessary part' of a larger project within the purview of section 240(1)."[2] 93 NY2d at 326, 690 NYS2d at 527.

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The extant facts are contained in the deposition of claimant, taken by the defendant on February 12, 1999 (cl affirm, exh F). Flagg fell on September 2, 1997; he had been working for a company named Tri-Venture since the early part of that year.

Flagg described the work as then in a preliminary phase; demolition was being performed -- the roadway was broken up, but not the abutment walls. He believed that the work on the connector bridge was part of a larger project to build a high-occupancy-vehicle lane on the Long Island Expressway.

Claimant described his job duties as providing "vertical lines and horizontal line[s]" for the construction trades. He took measurements with a "... transient or a level or a VL light surveying instrument". Flagg brought such equipment to the connector bridge. At that location, "I was holding the rod on the existing steel in order to locate it for the redesign of the bridge.

...A rod is a measuring device like a ruler which extends to 25 feet, telescopically."

Claimant acknowledged that he had no duties other than taking measurements for the general contractor and the subcontractors. Flagg had begun at the connector bridge site a month or two before the accident, but was there only four times during such period; no information is available as to claimant's location and activities the remainder of the time.

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There is no simple formula that will illuminate the correct pigeonhole for a particular set of job duties. As Chief Judge Kaye lamented in a case to determine if certain work constituted altering within the meaning of §240.1: "[T]his appeal represents yet another attempt at the highly elusive goal of defining with precision statutory terms within Labor Law [§240 et seq]." Joblon v Solow, 91 NY2d 457, 460-61, 672 NYS2d 286, 288 (1998).

No case has been found that directly involves §240.1 coverage of a surveyor[3] (which would still of course have required evaluation in view of its specific circumstances), but there are a number of decisions in which the worker was engaged in inspection or measurement; e.g., Martinez, supra; and two appellate division cases decided in the month following Martinez: Aubrecht v Acme Electric Corp., 262 AD2d 994, 692 NYS2d 544 (4th Dept 1999), and Crowther v City of New York, 262 AD2d 519, 692 NYS2d 439 (2d Dept 1999).

Mr. Martinez was an environmental inspector whose duties were to determine whether asbestos samples had been previously taken, check areas that were marked as containing asbestos and measure places where asbestos had been found. The actual cleaning and removal of asbestos was scheduled for a later date. On the day of the accident, Martinez was sent to a school to visually inspect and take measurements. When attempting to reach an overhead insulation-covered pipe, Martinez and another inspector moved a desk on which plaintiff climbed on top. He then fell when trying to grasp the top of a closet to reach a higher position. In affirming summary judgment for the defendant per the §240.1 cause of action, the Court of Appeals said:
While the reach of section 240(1) is not limited to work performed on actual construction sites....the task in which an injured employee was engaged must have been performed during "the erection, demolition....or pointing of a building or structure." Here, plaintiff's work as an environmental inspector during phase one was merely investigatory, and was to terminate prior to the actual commencement of any subsequent asbestos removal work. In fact...any future repair work would not even be conducted by ... plaintiff's supervisor, but by some other entity." 93 NY2d at 326, 690 NYS2d at 527.
In Aubrecht, the plaintiff was an architect inspecting an interior wall at a construction site when the scaffold on which he was standing collapsed. The reported case relates scant detail, but in upholding a grant of summary judgment for the plaintiff, the Fourth Department observed that plaintiff was vice-president of a company which contracted with the defendant to provide architectural design and supervision in connection with the construction of a manufacturing plant, and his work was "essential" to the construction (compare with "integral and necessary").

Crowther, while strictly speaking a §241.6 case, is nonetheless useful for our purposes. Crowther was an employee of a company hired to inspect steel work on a construction site for rust and dirt, which would prevent fireproofing from adhering to the steel's surface. To access the steel columns, Crowther was required to walk across wire mesh that had been laid out to reinforce a concrete floor to be poured at a later phase in the construction. He became entangled in some scrap mesh and fell. The Second Department determined that the plaintiff was within the statutory class of protected persons.

While not comprehending inspection or measuring functions, consider Covey v Iroquois Transmission System, 89 NY2d 952, 655 NYS2d 854 (1997), which claimant highlighted in oral argument. Richard Covey fell into a fifteen foot trench off a backhoe while replacing its hydraulic fluid. Plaintiff was responsible for lubrication and fluid maintenance on the heavy equipment used to construct a natural gas pipeline, which work he apparently performed on a continual and daily basis so as to keep the heavy equipment operating.[4] The Court of Appeals upheld a three-to-two grant of §240.1 summary judgment in favor of the plaintiff, "inasmuch as the work performed ...was part of the construction of the pipeline." 89 NY2d at 954, 655 NYS2d at 855. In our case, claimant has yet to demonstrate the level of engagement with ongoing construction as obtained in Covey.

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In view of the foregoing,[5]at this juncture, the facts are insufficiently developed to support the relief requested by Gordon Flagg and Iona Flagg. Accordingly, IT IS ORDERED that claimants' motion for partial summary judgment be denied.

July 31, 2000
New York, New York

Judge of the Court of Claims

[1] Except in the closing paragraph, references herein to Flagg and in the singular to "claimant" refer to Gordon Flagg; the claim of Iona Flagg is derivative of her husband's.

[2] The Second Department had by a three-two vote barred 240.1 coverage. The two dissenters used the "integral and necessary part" standard to find coverage; the majority, using not dissimilar terminology, concluded that Martinez' inspector job was clearly not integral to the job of removing asbestos. As a general proposition, it is a necessary, but not sufficient, condition that the claimant's employer had been hired to perform construction work. See, e.g., Crowther, infra; and Gibson v Worthington Division of McGraw-Edison Co.,78 NY2d 1108, 578 NYS2d 127 (1991). Presumably such is the case for Mr. Flagg. He was vague on the issue, but in his deposition, a state engineer, Stanley Lechner, agreed that the contractor at the connector bridge was "Scalamandre, Posillico and Hendrickson of Tri-Venture" (cl affirm, exh G at p.9).

[3] Defendant proffers as a surveyor the plaintiff in Hernandez v Board of Education of City of New York, 264 AD2d 709, 694 NYS2d 752 (2d Dept 1999), but Ellis Hernandez was performing a field survey of steam traps at a public school when he fell from a steel ship's ladder permanently affixed to the basement wall.

[4] For a more complete discussion of the Covey facts, see its report in the appellate division at 218 AD2d 197, 637 NYS2d 992 (3d Dept 1996).

[5] The following submissions from the parties were reviewed: claimants' Notice of Motion with Attorney's Affirmation and exhs A through G; claimants' Affirmation (in reply to defendant); defendant's Affirmation in Opposition.