New York State Court of Claims

New York State Court of Claims

MCDERMOTT v. THE STATE OF NEW YORK, #2001-009-043, Claim No. 98415, Motion No. M-63497


Claimant's motion for summary judgment on liability pursuant to Labor Law § 240(1) was 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):

Claimant's attorney:
BY: Michael G. Dwyer, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Smith, Sovik, Kendrick & Sugnet, P.C.
Steven Ward Williams, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
September 20, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking summary judgment on the issue of liability, based upon an alleged violation of Labor Law, Section 240(1).
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney's Affidavit, Affidavit of Michael Moses, with Exhibits 1,2,3

Memorandum of Law 4
Claimant, a journeyman ironworker employed by Delhi Steel Corporation, was injured on March 26, 1998 in a construction accident while working on an addition to the Cayuga Correctional Facility located in Moravia, New York.

On that date, claimant and a coworker were both working on the second floor of the prison, and were installing vertical irons which held retaining screens in place. This work required the use of a scaffold. After completing their work on the second floor, claimant and his coworker began to move their scaffold and equipment down to the first floor area, where they would be working next. To do this, claimant intended to lower or throw his equipment through an open end of one of the cells on the second floor down to the first floor. At this point in time, the cells did not have permanent outside walls erected, and they were open to the ground below, so that claimant could easily lower his equipment through the open end. As claimant started to toss a portion of his scaffold known as the "outrigger" through the open cell wall on the second floor, a portion of it hooked onto one of his sleeves and pulled him through the opening of the cell wall, where he then fell approximately 15 feet down to the ground floor, causing him to suffer his injuries.

This accident was witnessed by another coworker, Michael Moses.

Deposition testimony submitted with this motion established that prior to this accident, two different types of safety devices had been in place at different times to prevent workers from falling. Initially, a cable system was erected around the perimeter of the building. At some point during the construction process, this cable system was removed and was replaced by a system of wooden barricades approximately four feet high, which were erected and placed in the opening at the end of each cell. Prior to the date of claimant's accident, however, these barricades had been removed from many of the cell openings, including the cell from which claimant fell.

Deposition testimony and the affidavit of Michael Moses conclusively establish that there were no safety devices in place along the open, outside wall of the cell from which claimant fell.

Based upon the facts as set forth above, claimant now moves for summary judgment on liability pursuant to Labor Law § 240(1). Defendant has not contested any of the facts as presented by claimant in this motion, and in fact has not submitted any papers whatsoever in opposition to the relief sought herein.

In pertinent part, Labor Law § 240(1) provides that "All contractors and owners and their the erection, demolition, repairing, altering, pointing, cleaning, or polishing 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, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

In this case, it is undisputed that the State was the owner of the premises where the accident occurred. Furthermore, there is no question that claimant was engaged in construction work which exposed him to elevation related risks, and that he fell approximately 15 feet while performing such work. As a result, it is abundantly clear that Labor Law § 240(1) applies to the facts and circumstances of this claim.

It is well established
that a violation of Section 240(1) of the Labor Law imposes absolute liability (Rocovich v Consolidated Edison Co., 78 NY2d 509). In order to succeed on such a cause of action, therefore, a claimant must only establish that there was a violation of the statute, and that the violation was the proximate cause of the injury (Bland v Manocherian, 66 NY2d 452; Gordon v Eastern Railway Supply, 82 NY2d 555). The duty imposed is non-delegable and the negligence, if any, of the injured worker is of no consequence (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513).
In this case,
the failure to provide any safety devices at this elevated work site clearly establishes a violation of § 240(1) of the Labor Law (Howell v Rochester Institute of Technology, 191 AD2d 1006). Similarly, there is no question that the failure to have in place any safety devices was a proximate cause and played a substantial part in causing the accident herein and the resulting injuries suffered by claimant (see, Howell v Rochester Institute of Technology, supra; Gordon v Eastern Railway Supply, supra). Claimant is therefore entitled to summary judgment on the issue of liability pursuant to Labor Law § 240(1).
In light of the decision herein, the trial on liability, previously scheduled to commence on January 28, 2002, is hereby canceled.
It is therefore
ORDERED, that Motion No. M-63497 is hereby GRANTED, and the Clerk of the Court is directed to enter judgment in accordance herewith.

September 20, 2001
Syracuse, New York

Judge of the Court of Claims