New York State Court of Claims

New York State Court of Claims

AUGER v. THE STATE OF NEW YORK AND THE NEW YORK STATE THRUWAY AUTHORITY, #2001-005-549, Claim No. 94487, Motion Nos. M-57544, CM-57835


Defendants' cross-motion for partial summary judgment dismissing Claimants' cause of action under Labor Law §240(1) is granted because the fall of approximately four feet from the conveyor belt on a trenching machine did not fall within the purview of the statute, inter alia, as Claimant was repairing a machine situated at ground level and this does not involve an elevation-related risk.

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:
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP
By: Thomas M. Mercure, Esq. Richard P. Weisbeck, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Walsh, Perley & WilkinsBy: Michael F. Perley, Esq.
Third-party defendant's attorney:

Signature date:
November 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 11, were read on motion by Claimants for partial summary judgment against Defendants under Labor Law §240(1), and on cross-motion by Defendants for partial summary judgment dismissing Claimants' cause of action under Labor Law §240(1):

Papers Numbered

1, 2, 3 Notice of Motion, Affidavits and Exhibits Annexed

4, 5 Notice of Cross-Motion, Affidavit and Exhibits Annexed
  1. Claimants' Reply Affidavit
  2. Defendants' Reply Affidavit
  3. Claimants' Correspondence with original photographs
  4. Defendants' Correspondence with Attachments
10, 11 Filed Papers: Claim, Answer[1]

Upon the foregoing papers and after hearing Richard P. Weisbeck, Jr., Esq., on behalf of the Claimants, and Michael F. Perley, Esq., on behalf of the Defendants, Claimants' motion for summary judgment is denied and Defendants' cross-motion for summary judgment dismissing the cause of action pursuant to Labor Law §240(1) is granted.

The claim arose on April 16, 1996, when the Claimant, Robert H. Auger,[2] allegedly fell approximately four feet to the ground from a conveyor belt located on a trenching machine which he was using as a platform while welding a broken piston. Claimant was not provided with a safety belt, scaffold or other safety device to assist him in performing the repair work on the trenching machine.

Claimant was a certified welder employed by Sealand Contractors Corporation (Sealand), the general contractor on a reconstruction project for the Defendants on Interstate Route 490. On the day of the incident, Claimant had been working at his employer's shop in Victor, New York on an unrelated project when he was instructed to travel to the construction site and weld a broken piston on a trenching machine belonging to All-States Sawing and Trenching, Inc. (All-States), one of Sealand's subcontractors on the Route 490 project. When he arrived at the site, he was directed to the westbound side of Route 490, near the Churchville Exit, in the City of Rochester, New York where the trenching machine was located. Claimant was told that the welding had to be completed that day because All-States needed to utilize the trencher on the following day.

Claimant contends that he is entitled to summary judgment as a matter of law because he was not provided with scaffolding, a ladder or any other safety device in violation of Labor Law §240(1). The Defendants oppose this motion and seek summary judgment on the grounds that the activity being undertaken by Claimant is not a protected activity within the penumbra of Labor Law §240(1).

The question before me is whether this incident falls within the purview of Labor Law §240(1). This section provides in pertinent part:
All . . . owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
This statute imposes a nondelegable duty upon owners to protect the safety of workers who are subjected to elevation-related risks in the course of construction, demolition, alteration or repair of a building or structure (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).

The law in this area is continually evolving. In 1999, the Fourth Department decided the case of Spears v State of New York, 266 AD2d 898. In Spears, which involved substantially similar facts, that claimant fell approximately 15 feet to the ground below while attempting a repair on a dump truck owned by his employer, an entity that had contracted with the State of New York to renovate a highway. The Fourth Department affirmed the denial of that claimant's motion for partial summary judgment by determining that a highway at grade is not a building or structure within the purview of §240(1) of the Labor Law (Spears, supra, at 898).

More recently, the Court of Appeals decided the case of Bond v York Hunter Constr., Inc., 95 NY2d 883, which involved a worker who was injured after falling approximately three feet when he stepped onto grease located on the track of a demolition vehicle which the plaintiff was using as a step to alight from the vehicle. In determining that this situation did not fall within the protections of §240, the Court stated: "As a matter of law, the risk of alighting from the construction vehicle was not an elevation-related risk which calls for any of the protective devices of the types listed in Labor Law §240(1)" (Bond, supra, at 884-885).

Other cases have followed the rationale of Spears and Bond and held that incidents, similar to the present case, do not fall within the limited protection of §240 because a highway at grade is not a building or structure within the meaning of §240, and because the incident did not involve an elevation-related risk (see, Dilluvio v City of New York, 264 AD2d 115, affd 95 NY2d 928; Lessard v Niagara Mohawk Power Corp., 277 AD2d 941; and Vargas v State of New York, 273 AD2d 460).

In denying Claimant's motion for summary judgment, I am mindful of his argument that the trenching machine under repair at the time of the incident was being utilized on a pipeline construction project. The contract documents call for the resurfacing and rubblizing of 10.9 miles of asphalt concrete as well as the rehabilitation of certain bridges located on Route 490. According to the deposition testimony of Sheldon D. Lortz, the State's Engineer-In-Charge (EIC) of the reconstruction project on Route 490, All-States, the owner of the trenching machine being repaired, was hired by Sealand to do "trenching culvert excavation" on the project. At the time of the incident, however, it does not appear that the trencher was being used. In fact, it was located on the westbound side of Route 490. Moreover, Claimant did not fall from a bridge or into a culvert. Therefore, the mere fact that the Route 490 project may have included some work on a bridge or a culvert is not sufficient to invoke the statute where, as here, Claimant fell while repairing a machine at ground level. To reach a contrary decision would mean that any time an accident occurs on a roadway during a project which also includes work on a bridge, a culvert or an overpass, that such an accident would be transfigured into a Labor Law §240(1) case. There is no indication that the legislature intended such a result (see, Dilluvio v City of New York, supra, 264 AD2d 115, 121-122, affd 95 NY2d 928).

Therefore, I conclude that the present case does not fall within the protections of Labor Law §240(1) because the incident did not involve an elevation-related risk, and because the Claimant was not injured while engaged in the construction, demolition, alteration or repairing of a building or structure.

Accordingly, the Defendants' cross-motion is granted and the cause of action pursuant to Labor Law §240(1) is dismissed.

November 20, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]The Answer was filed only on behalf of the State of New York. No application has been made to the Court with respect to the New York State Thruway Authority, and accordingly, the caption herein remains unchanged.
  2. [2]The claim of Sandra L. Auger is derivative only. Therefore, all references hereinafter to Claimant shall mean Robert H. Auger only.