New York State Court of Claims

New York State Court of Claims

OBARA v. THE STATE OF NEW YORK, #2001-015-147, Claim No. 99572, Motion No. M-63279


Court granted claimant's motion for summary judgment on Labor Law § 240 (2) claim where claimant hired as bridge painter/sandblaster fell from elevated work site while trying to mount a moveable scaffold from a ladder which did not reach the bottom of the scaffold.

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:
The Gucciardo Law FirmBy: Brian W. Raum, Esquire
Defendant's attorney:
Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C. By: Rebecca A. Slezak, Esquire
Third-party defendant's attorney:

Signature date:
April 27, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to Rule 2221 of the CPLR "to renew and reargue" claimant's prior motion, upon which the Court granted summary judgment on the issue of liability pursuant to CPLR 3212 and Labor Law 240 (1), is deemed a motion to reargue only and as such is denied. The claim seeks to recover damages for personal injuries sustained on September 21, 1998 at approximately 11:30 p.m. at a State highway bridge rehabilitation site in Albany County. At the time of his accident claimant was a painter/sandblaster employed by Savoya Construction Company. He fell while attempting to access moveable scaffolding suspended under the bridge by the use of a ladder which was too short to reach the suspended scaffold directly. Claimant alleges that while trying to mount the scaffold it moved and he fell from the ladder to the pavement below sustaining injuries for which he seeks compensation.

The defendant's attorney, after quoting from the 1999 amendments to Rule 2221 (see, L. 1999 ch 281 § 1 eff July 20, 1999) which require a movant to specifically identify a motion brought pursuant to such section as one for leave to reargue (CPLR Rule 2221 (d) (1)) or renew (CPLR Rule (e) (1)), then failed to follow the statute's requirements by referring to her motion as one "to renew and reargue." While combination motions are permitted under the 1999 amendment (see, CPLR Rule 2221 (f)), such a motion requires that each item of relief sought be separately identified and addressed. Such separate treatment is lacking on this motion.

A review of the motion reveals that, despite defense counsel's protestations to the contrary, it is purely a motion to reargue the prior motion and resulting decision and order based upon what counsel perceives as the Court's misapprehension of the facts presented and/or a misapplication of the law. The alleged "new" matter (see, Slezak Reply Affirmation, para 3) was submitted on the prior motion and was discussed by the Court at page 6 of the Court's decision and order. Moreover, defendant on this motion has not offered "reasonable justification" for its failure to present the allegedly new facts on the prior motion as mandated by Rule 2221 (e) (3).

The Court has reviewed the papers submitted on the motion including the Court's decision and order filed February 26, 2001 and finds no misapprehension of the facts or misapplication of existing law as alleged by the defendant. Accordingly, defendant's motion to reargue, being the singular motion before the Court, is in all respects denied.

Finally, claimant sought summary judgment only with regard to his Labor Law § 240 (1) cause of action. A determination of absolute liability under that statute renders irrelevant the issue of claimant's comparative negligence which might otherwise have been available with regard to claimant's Labor Law 241 (6) cause of action (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521; Bland v Manocherian. 66 NY 2d 452).

Trial on the issue of damages only based upon the Court's determination of liability pursuant to Labor Law § 240 (1) shall take place as scheduled commencing April 30, 2001.

April 27, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 23, 2001;
  2. Affirmation of Rebecca A. Slezak sworn to March 23, 2001, with exhibits;
  3. Affirmation of Brian W. Raum, dated April 9, 2001, with exhibit;
  4. Affirmation of Rebecca A. Slezak dated April 16, 2001.