New York State Court of Claims

New York State Court of Claims

ANARUMO v. THE STATE OF NEW YORK, #2001-016-002, Claim No. 93045, Motion No. M-62402


Synopsis



Case Information

UID:
2001-016-002
Claimant(s):
JOHN ANARUMO and NANCY ANARUMO
Claimant short name:
ANARUMO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93045
Motion number(s):
M-62402
Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Harvey M. Jasper, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John A. Beyrer, Esq.
Third-party defendant's attorney:

Signature date:
January 16, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This a motion by John Anarumo for partial summary judgment[1], which defendant opposes and, for its part, seeks summary judgment under CPLR 3212(b).[2] Claimant, an ironworker, was injured September 19, 1995 while at work on a construction site which was an elevated portion of the Van Wyck Expressway in Queens County. Anarumo was employed by the U.S. Bridge Company on a project for which Slattery Associates was the general contractor. The following account is unchallenged: [C]laimant was in a manlift bucket repairing the beams underneath the highway by putting steel plates on beams that were deteriorated...[The] manlift...was raised up next to a beam some twelve or thirteen feet above the ground. He was holding a steel plate which was estimated to weigh between 60 and 100 pounds above his head, arms fully extended, so that his partner could bolt it up and connect it to the beam. Suddenly and without warning the manlift basket dropped down [about one foot]...throwing him off balance and twisting his body...the steel plate struck him upon the shoulder. [Cl affirm, ¶4].


Section 240.1 of the Labor Law, commonly known as the scaffold law, imposes absolute liability on the owner of a construction site for an injury that results from an elevation-related risk. As to ownership, it is undisputed that the State owns the worksite. The defendant does not question claimant's affirmation that the "[Van Wyck] expressway is owned by the defendant" (affirm, ¶3); moreover, in its answer to the claim, defendant denies only that it is "responsible for maintenance of the area of roadway identified in the claim" (cl affirm, exh E). In addition, Anarumo in his deposition testimony refers to State employees assigned to the job site – inspectors and an engineer-in-chief, as there would be where a contract between the State and Slattery Associates exists.

Under §240.1, it is therefore immaterial that the piece of equipment on which claimant was injured was leased to U.S. Bridge by another company, Pride Equipment Corporation. While Labor Law §241.6, alternatively relied upon by claimant to support his motion, also subjects construction site owners to liability irrespective of the level of supervisory authority[3], it is unnecessary to reach the argument brought under §241.6 (which unlike the scaffold law is not a strict liability statute).

The Court of Appeals has explained elevation-related risks as follows:

The various tasks in which these devices [scaffolds, ladders, hoists, etc] are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured [Rocovich v Consolidated Edison Co., 78 NY2d 509, 514, 577 NYS2d 219, 222 (1991)].


On the extant facts, claimant's injury is comprehended by this standard. Defendant supplies a number of cases, some of which are responsive to the short distance that the basket holding Anarumo had slipped, viz., about 12 inches – but these cases rest upon distinguishable fact patterns. In Sousa v American Ref- Fuel Co. of Hempstead, 258 AD2d 514, 685 NYS2d 279 (2d Dept 1999), plaintiff fell while standing atop an iron grid that was 12 inches above the ground. DeMayo v 1000 Northern of NY Co., 246 AD2d 506, 667 NYS2d 400 (2d Dept 1998) involved an injury caused by a drop of 13 inches from the doorway of a utility room to the ground. Other cases relied upon by defendant whose facts are sufficiently distinguishable include Misseritti v Mark IV Constrtuction Company Inc., 86 NY2d 487, 634 NYS2d 35, 1995 (collapse of a fire wall); Melo v. Consolidated Edison Co. of New York, Inc., 92 NY2d 909, 680 NYS2d 47, 1998 (the offending steel plate was not elevated above the ground); and Sutfin v Ithaca College, 240 AD2d 989, 659 NYS2d 555 (3d Dept 1997), in which two workers were on a scaffold lowering planks from one level of the scaffold to another; when one of them lost his grip, the planks fell and pinned plaintiff's arm between the planks and the scaffold rigging.

Once it can be shown that an accident is elevation-related, a claimant must demonstrate that the scaffold, ladder, bucket, etc. did not provide proper protection (and that such failure was the proximate cause of his or her injury). PJI 2:217. The Second Department has consistently ruled that whether there was proper protection is for the trier of fact only in those instances when the device did not "move, collapse or otherwise fail to perform its function of supporting" the worker who fell. Mejia v African Methodist Episcopal Allen Church, 271 AD2d 583, 583, 706 NYS2d 450, 451 (2000).

One final point. It might be noted that the day of the injury, Anarumo was working closely with another co-worker, Patrick Duffy, who had just gotten out of the bucket before claimant's injury (def affirm, exh E, cl ebt). As generally indicated earlier, defendant submitted no affidavit or deposition from Duffy contradicting his fellow ironworker's version of the facts. See Klein v City of New York, 222 AD2d 351, 635 NYS2d 634 (1st Dept 1995) aff'd 89 NY2d 833, 652 NYS2d 723 (1996). Professor Siegel has stated: "If material facts are in dispute, or if different inferences may reasonably be drawn from facts themselves undisputed, the case must go to trial and summary judgment must be denied." David D. Siegel, New York Practice §278 at p.439 (3d ed). A court can search the record, but cannot create one.

***

In view of the foregoing, IT IS ORDERED that the motion (M-62402] of John Anarumo and Nancy Anarumo for summary judgment on liability under Labor Law §240.1 is granted; IT IS FURTHER ORDERED the portion of such motion based upon Labor Law §241.6 is denied without prejudice.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY


January 16, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1]Inasmuch as the claim of the wife of John Anarumo, Nancy, is derivative of her husband's, this Order will refer to Mr. Anarumo and "claimant" in the singular.
[2] The papers reviewed were: from the claimant -- a Notice of Motion with Affirmation in Support containing the claimant's affidavit and exhibits A-G; an Affirmation in opposition to Cross-Motion; from the defendant -- an Affirmation in Opposition containing exhibits A through E.
[3] Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978).