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
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
In pertinent part, Labor Law § 240(1) provides that "All contractors and
owners and their agents...in 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
, 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
; Gordon v Eastern Railway Supply
). 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.