New York State Court of Claims

New York State Court of Claims

OBARA v. THE STATE OF NEW YORK, #2001-015-125, Claim No. 99572, Motion No. M-62447


Claimant's motion seeking a determination of liability pursuant to Labor Law § 240(c) granted where claimant fell from ladder while attempting to mount moveable scaffold at highway bridge rehab work site.

Case Information

MARK OBARA The parties have improperly designated the State of New York as a respondent. In this action the proper designation should be defendant and all references to the defendant herein shall refer to the State.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The parties have improperly designated the State of New York as a respondent. In this action the proper designation should be defendant and all references to the defendant herein shall refer to the State.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
The Gucciardo Law FirmBy: Brian W. Raum, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C. Rebecca A. Slezak, Esquire, of counsel
Third-party defendant's attorney:

Signature date:
February 22, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment pursuant to CPLR 3212 seeking an order determining the liability of the defendant as a matter of law pursuant to Labor Law § 240 (1) and setting the matter down for trial on the issue of damages is granted. Claimant seeks damages for personal injuries sustained by him at approximately 11:30 p.m. on the night of September 21, 1998 at a highway bridge rehabilitation site in the County of Albany. At the time of his injury claimant was an employee of Savoya Construction Corporation, a New Jersey corporation which had entered into a contract (D257519) with the State of New York for the painting of eight public highway bridges on various routes and in various locations within Albany County. The work was to be performed in accordance with the "Standard Specifications" of the New York State Department of Transportation. Claimant's accident occurred at one of those eight bridges; namely, the southbound exit ramp bridge of Route 7 at its junction with Interstate 787.

Claimant, who had been hired as a painter/sandblaster, was attempting to access a scaffold suspended from the underneath portion of the Route 7 ramp bridge when the accident occurred. His affidavit in support of the motion (Exhibit C) describes the incident in the following manner:
7. In order to get from the ground to the suspended scaffold I had to climb a ladder which was placed against the concrete bulkhead wall at the end of the bridge because it did not reach the height of the scaffold. Typically, a longer ladder is used which is placed directly against the suspended scaffold itself.

8. My supervisor, Mike Hatzileris provided the ladder in question and was holding the ladder at the time I began to climb toward the scaffold. When I reached the top rung of the ladder it was necessary for me to step on the metal portion of the ladder which extended past the last rung because the ladder was too short to reach the scaffolding.

9. I requested that the scaffold be moved closer to me at that time but the workers who were standing on the scaffold were unable to do so.

10. At that time I was directed by Mike Hatzileris to climb onto the scaffold which was positioned approximately three feet from the ladder. In order to do so I reached for one of the steel beams under the bridge to assist me in the transition from the ladder to the scaffold. At that moment, the ladder slid out from under me and the scaffold slid away from me.
11. As a result, I fell approximately fifteen to eighteen feet to the cement pavement below injuring both of my feet. I was then transported to Albany Memorial Hospital where I was treated for my injuries.
Claimant also asserts that he was not provided a safety harness to prevent accidental falls despite repeated requests that such equipment be made available. This allegation, however, is contradicted in the testimony of claimant's supervisor, Mike Hatzileris, who alleged at his examination before trial, that not only had claimant been provided with a harness but also that claimant was wearing it at the time of his fall. The resulting discrepancy regarding the furnishing and use of a harness does not create a material issue of fact precluding summary judgment under the circumstances here present, however, since the supervisor also testified that claimant would not have connected his harness to the safety cable by means of lanyards until he actually mounted the scaffold (p. 40).[1] Since it is uncontradicted that claimant did not mount the scaffold prior to his fall, the availability and use of the safety harness and lanyards has no effect on the outcome of this motion. Rather, the primary inquiry concerns the adequacy of the safety devices which were, admittedly, provided, i.e., the ladder and moveable scaffold.

The initial burden on a motion for summary judgment rests with the moving party and requires a demonstration that the movant is entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Here claimant has alleged that he was injured in a fall from an elevated work site which was proximately caused by the State's breach of its nondelegable statutory duty as owner of a construction site to "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" (Labor Law § 240 (1)). The Court of Appeals has repeatedly found that owners may be held absolutely liable for any breach of that statutory duty which proximately causes injury to a worker so engaged regardless of whether the owners or contractors actually exercised supervision or control over the work (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-501).

Claimant's proof offered on this motion demonstrates that the accident scene was a construction site, that as a painter/sandblaster claimant was engaged in one of the enumerated activities subject to the protections afforded by Labor Law § 240 (1) (Gordon v Eastern Ry. Supply, 82 NY2d 555) and that the highway bridge owned by the defendant qualifies as a structure (see, Reed v State of New York, 249 AD2d 719). He further demonstrated that the work he was hired to perform was to take place at an elevated location (a scaffold suspended underneath the bridge's supporting steel framework) and that he was provided with safety devices; namely a ladder and the moveable scaffold one or both of which failed to perform its function of supporting a worker thereby causing injury (see, Quinlan v Eastern Refractories Co., 217 AD2d 819; Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853). Once a plaintiff demonstrates a prima facie case of liability based upon the slipping or collapse of a ladder [or scaffold] the burden shifts to defendants to submit evidence sufficient to raise a triable issue of fact (Klein v City of New York, 89 NY2d 833, affg 222 AD2d 351).

In opposition to the motion the defendant submitted the affirmation of an attorney without direct knowledge of the facts; a copy of the proposal for the subject project D257519; minutes of a preconstruction meeting held May 20, 1998 and a related attendance sheet; copies of the Engineer in Charge's (EIC) Daily Project Diaries dated September 1, 2, 16, 20, 21, 1998; a memo from the EIC (Kirk Atwater) to Tom Melander, the Department of Transportation Regional Safety Officer, dated September 21, 1998 regarding claimant's accident; EIC's Daily Project Diary dated September 22, 1998; claimant's hospital admission record dated September 22, 1998; a transcript of an examination before trial of claimant held June 23, 2000; a transcript of the EBT of Kirk Atwater held on the same date; and a transcript of the EBT of Kenneth Korona, an outside inspector (i.e., a non-State employee) hired by DOT to inspect the sandblasting/painting work performed at the site.

The Court, with consent of both attorneys, permitted the defendant to submit a supplemental affirmation in opposition and a copy of the transcript of an EBT of Mike Hatzileris, a supervisor for Savoya Construction Corp. on the date of the accident which was unavailable when defendant submitted its initial opposition to the motion. The Court also allowed claimant the opportunity to submit a response to the supplemental affirmation which included an affidavit of Frank Obara, brother of the claimant, who was also employed by Savoya Construction Corp. at the site on the night of claimant's injury and who allegedly was an eyewitness to claimant's fall.

Even viewing the non-moving defendant's evidence in the light most favorable to it, it contains nothing which creates a material issue of fact related to the happening of the accident. The elevated work being performed at the site on the night in question was required to be performed within a "containment area" created by suspending a number of tarps from the bridge railings to the ground below. Because of the caustic material used to clean the steel in preparation for painting and because the old paint which was being removed contained a lead base, access to the containment area was limited to those persons wearing protective clothing and a breathing apparatus. Of the people on the site on the night of the accident only the painters/sandblasters themselves and Mike Hatzileris (Savoya's supervisor) were within the containment area when claimant fell.

Claimant testified in his EBT that there were three painters/sandblasters on the scaffold as he prepared to board it (p. 27) but only the claimant's brother, Frank Obara, provided an affidavit regarding the accident. Defendant's witness (Hatzileris), however, testified that claimant's brother Frank Obara was the only painter/sandblaster on the scaffold when claimant fell (p. 20). The accounts of claimant and his brother are, as would be expected, quite similar. The account of Mike Hatzileris, offered with the supplemental affirmation of defendant's attorney, does not differ significantly from that of claimant or his brother although some minor discrepancies are noted. Hatzileris testified that he held the ladder while claimant ascended it (p. 19). He described the ladder as a 13 foot portion of a 24 foot aluminum extension ladder ( pp 19, 34, 41) whose top was tied to the subject bridge to provide stability (p. 14; 34) and whose bottom rested on the ground (p. 35). Initially Hatzileris testified that while holding the bottom of the ladder he watched as claimant climbed (p. 19) but later admitted that he did not watch the ascent since he did not want to get sand in his eyes (p. 39, 44). He testified that when a worker climbed about 10 feet up the ladder he or she would step onto a pier cap (i.e., the top of the concrete bridge support). From there the worker would sit and mount the suspended scaffold (p. 12). However, according to his testimony, Hatzileris was looking down as claimant ascended the ladder and does not know how far claimant climbed or what caused him to slip and fall (pp. 44-45) from the ladder.

None of the other persons whose EBT testimony was submitted on the motion by the defendant were within the containment area when claimant fell and, consequently, their testimony cannot form the basis for finding a triable issue of fact as to the happening of the accident. Neither Hatzileris nor any other witness for the defense contradicted claimant's allegation that the suspended scaffold moved away from him as he attempted to board it nor offered evidence tending to prove that the scaffold was tied off or otherwise secured to prevent its movement.

The defendant herein attempted to defeat claimant's motion by introducing evidence regarding claimant's alleged intoxication at the time of his accident. Although in his supplemental affirmation defendant's attorney references a blood test taken at the hospital to determine claimant's blood alcohol level, no proof in competent form was proffered to establish that a blood test was performed and what information it revealed concerning claimant's alleged intoxication. The only other proof submitted were allegations concerning the smell of alcohol on claimant's breath. Much more is required to defeat a summary judgment motion once claimant has established that a violation of Labor Law § 240 (1) proximately caused his or her injuries (Kijak v 330 Madison Ave. Corp., 251 AD2d 152).

Defendant also attempted to avoid liability by arguing that claimant was a "recalcitrant worker" but there is nothing in this record to support this argument. The appellate courts have made it exceedingly clear that in order to benefit from the recalcitrant worker defense, a defendant must demonstrate that a plaintiff "deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor" (Salotti v Wellco, Inc., 273 AD2d 862; Kaffke v New York State Elec. & Gas Corp., 257 AD2d 840). Here defendant offered no proof of claimant's refusal to use any available safety device after being ordered to do so. Without such proof, the recalcitrant worker doctrine is inapplicable (Reed v State of New York, supra).

In order to recover under Labor Law § 240 (1) a claimant, in addition to meeting the statutory criteria, must demonstrate either that the owner or contractor failed to furnish a safety device to provide proper protection against falling or being struck by a falling object; or demonstrate that the device(s) which was/were provided failed in some way to protect the claimant from a gravity related injury (see, Gordon v Eastern Ry. Supply, supra). Here claimant alleged that although he was provided with both a ladder and a moveable scaffold (easily recognized as safety devices) neither provided the necessary protection under the circumstances. Clearly, the use of a ladder which defendant admits was of insufficient length to reach the scaffold since it was 13 feet long and the scaffold was fourteen feet above the pavement and the movability of the scaffold itself, which had not been anchored to prevent its movement, constitute a breach of the defendant's nondelegable statutory duty under Labor Law § 240 (1) to provide appropriate safety devices positioned to prevent claimant's fall. Under the circumstances presented, the defendant's failure to comply with the duty imposed upon it was certainly a substantial factor in causing the claimant's fall and compels a finding against the State on the issue of liability.

The claimant's motion for summary judgment is granted. A conference will be scheduled to establish a date for trial on the issue of damages.

February 22, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 28, 2000;
  2. Affirmation of Brian W. Raum dated September 28, 2000 with exhibits;
  3. Affidavit of Mark Obara sworn to September 27, 2000 (Exhibit C to September 28, 2000 affirmation of Brian W. Raum);
  4. Affirmation in opposition of Rebecca A. Slezak dated October 11, 2000 with exhibits;
  5. Reply affirmation of Brian W. Raum in support of motion for summary judgment dated October 30, 2000;
  6. Supplemental affirmation in opposition of Rebecca A. Slezak dated December 7, 2000, with exhibit;
  7. Supplement affirmation in support of motion for summary judgment of Brian W. Raum dated December 20, 2000 with exhibit;
  8. Affidavit of Frank Obara sworn to December 20, 2000 (Exhibit A to December 20, 2000 affirmation of Brian W. Raum).

[1]Page references are to the examinations before trial of the identified witness unless otherwise noted.