New York State Court of Claims

New York State Court of Claims

RIZZO v. THE STATE OF NEW YORK, #2001-016-017, Claim No. 94350, Motion No. M-62503


Summary judgment on liability under Labor Law §240.1 was granted; claimant fell from a ledge.

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:
Dennis A. Herman, Esq.
Defendant's attorney:
Gottesman, Wolgel, Secunda, Malamy & Flynn, PCBy: Kenneth W. Malamy, Esq.
Third-party defendant's attorney:

Signature date:
March 6, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Angelo Rizzo[1] seeks summary judgment on liability under what is commonly known as the scaffold law (Labor Law §240.1), an application opposed by the defendant.[2] Mr. Rizzo was a laborer employed by DeFoe Corporation and working under a contract the company had with the State of New York for renovation work on the Prospect Expressway in Brooklyn.

On June 13, 1996, claimant was part of a crew of a half dozen workers - - carpenters and laborers -- assigned to the Prospect Park West Bridge, an overpass crossing the Expressway. Their job was to strip wooden forms that had held concrete while it was setting and separate the wood to save what was reusable. Generally, it was the carpenters who worked above ground level just under the bridge in bays on "bridge seats" or "abutment seats" some twelve feet over the road (cl affirm, the exh H photographs). Claimant, as a laborer, would stand below.

The wooden forms that were pried off by the carpenters were tossed down to the ground, the shoulder or closed lanes of the Expressway. Rizzo would then "take nails out of the wood...straighten the wood, [put] the bad with the bad, the good with the good" (id., exh B at p.108). One of the carpenters, Clement Vinciquerra, described Rizzo's job as thus: "[b]asically a laborer's duty is to strip the nails from the forms and load them on the truck..." (Id., exh E at p.28). Claimant added:
Part of my job too [was].. [i]f they needed a ladder to come down, I would bring them the ladder...As they went up someone else needed a ladder, I would bring the ladder, move the ladder over to the next bay. Or to the bay that was needed (id., exh B at p.121).

After a couple of hours, according to claimant, Vinciquerra asked him for assistance and Rizzo climbed up the ladder to the abutment. The carpenter told him he was having trouble with a piece of plywood that was part of a form. Claimant proceeded to take the metal bar, a kind of short crowbar (18 inches) and use a hammer to drive the bar under the wood in an effort to pry it loose. By that time, recounted claimant, Vinciquerra had been radioed or called by one of the other carpenters and went down the ladder off that particular worksite. Rizzo continues:
As I pulled down on [the bar]...trying to free the plywood...from the cement...I lost my balance and went over, I fell down, fell off the ledge [id., at p.134]... I am not sure if [the bar] slipped ... I just lost my balance [id., at p.139].

It was just before noon and the weather was clear. Claimant had been wearing his rubber-soled work boots and heavy duty gloves, a hard hat and an orange vest.

Vinciquerra's title was carpenter foreman. He did not remember if claimant was asked to assist on the abutment that day, but observed that if a foreman asked a laborer to come up from the ground because help was needed in stripping, it would be his job to follow such direction. Vinciquerra did not witness the accident, but did see claimant lying on the ground bleeding; "I believe I heard...Maria [Lores] say somebody fell" (id., exh E at p.30).

Maria Lores, a laborer, was working about 40 feet away from Rizzo, flagging traffic for a crew that was sealing the asphalt. In her examination before trial, Lores testified that she had observed Rizzo working on the overpass, and then:
Q. It was at that point in time you learned something happened to Mr. Rizzo?

A. That's when I saw him fall.

Q. You actually saw him falling?

A. Yes, I did. [Id., exh D at p. 25].

A written investigation of the matter was dated June 14, 1996, the next day, and filed by Varughese Joseph, a regional safety officer for the State Department of Transportation (id., exh L). The memorandum was based on information from Vinciquerra, engineer-in-charge John Haran and Robert Collela, the project superintendent. It stated that Rizzo fell from the bridge seat of an abutment wall of the Prospect Park West Bridge over the Prospect Expressway, and that it had been learned he was stripping forms at the time.

Joseph's memo acknowledged that Rizzo was working without "‘fall protection'(safety belt and life line)" and noted that while there were two carpenters and the claimant engaged in stripping the form-work in different bays, "[o]nly one ladder was used." To that effect, in his deposition, the engineer-in-charge testified that it was "against procedure ...against state regulations for a man to be working on such an abutment without fall safety equipment" [id., exh C at pp.61-62] such as "a rail, a scaffolding [or] safety belts" [id., Exh C at p.21]. He conceded that Rizzo was working at a height that was probably over 12 feet.
Labor Law §240.1 imposes absolute liability on the owner of a construction site for elevation-related risks "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." To prevail under the statute, a claimant must prove that proper protection thereunder was not provided and that such failure was a proximate cause of the accident. Bland v Manocherian, 66 NY2d 452, 497 NYS2d 880 (1985); PJI 2:217.

Defendant advances a number of arguments, viz., that (i) stripping forms is not within the ambit of §240.1, nor is removing nails from forms already stripped by the carpenters (citing Martinez v City of New York, 93 NY2d 322, 690 NYS2d 524 [1999]); and (ii) there was no corroboration of Rizzo's statement that he was directed to go aloft to strip a form - - without such direction his activity, defendant contends, would be the unauthorized work of a volunteer outside the scope of his employment.

Martinez is distinguishable, involving an environmental inspector whose duties were to determine whether asbestos samples had been previously taken, check areas that were marked as containing asbestos and measure places where asbestos had been found. The actual cleaning and removal of asbestos was scheduled for a later date.

Hagins v State of New York, 81 NY2d 921, 597 NYS2d 651 (1993) is more instructive. There the Court of Appeals upheld a grant of partial summary judgment under §240.1 for a worker who fell from a 15-foot high embankment, having been directed to retrieve a long board that was located near the embankment. In the case at bar, the bridge-seat abutment was more clearly a part of the construction work area than that obtaining in Hagins; the carpenters' work of stripping the forms is definitely comprehended within the meaning of §240.1. That Rizzo's activity on the abutment may have been an isolated instance is covered by Hagins; and see Covey v Iroquois Gas Transmission System, 89 NY2d 952, 655 NYS2d 854 (1997)[3] .

Rizzo maintains that he was directed by Vinciquerra onto the abutment to assist with the form stripping. The latter cannot recall so directing claimant, but he does not flatly contradict Rizzo. Nor did Vinciquerra explain that he could not remember it, but that such request was not something he would do. In any event, I find no support for the far reaching proposition that a sine qua non to recovery under the Labor Law can be a specific direction to a worker and that such direction must be proved with the explicit recollection of both worker and supervisor.

That claimant supplies the only testimony on whether he was to work above the ground "does not present a bar to summary judgment where his testimony concerning the manner in which the accident occurred is neither inconsistent with his own account provided elsewhere nor contradicted by other evidence." Klein v City of New York, 222 AD2d 351, 352, 635 NYS2d 634, 635 (1st Dept 1995) aff'd 89 NY2d 833, 652 NYS2d 723 (1996). Moreover, the issue in Klein was whether the ladder slipped. In the case at bar, defendant apparently does not contest that Rizzo was on the abutment, that he fell (after all, Lores saw it), or that a rail, safety belt or some kind of scaffold should have been used. Nor do we have any affidavit, deposition testimony or photograph that would suggest proximate cause is at issue. See Felker v Corning Inc., 90 NY2d 219, 660 NYS2d 349 (1997).


In view of the foregoing, IT IS ORDERED that the motion (M-62503) of Angelo Rizzo and Irene Rizzo for summary judgment on liability under Labor Law §240.1 is granted. The parties will be contacted to schedule a conference prior to the trial on damages.


March 6, 2001
New York, New York

Judge of the Court of Claims

[1] Unless the context indicates otherwise, references to "Rizzo" and "claimant" denominate Angelo Rizzo inasmuch as the claim of Irene Rizzo is derivative of her husband's.

[2] The papers reviewed were - - 1) from the defendant: an Affidavit in Opposition and a Memorandum of Law; 2) from the claimants: a Notice of Motion; an Affirmation in Support with exhibits A through M; and a Memorandum of Law.
[3] A fuller explication of the Covey facts is set forth in the appellate division report of the case at 218 AD2d 197, 637 NYS2d 992 (3d Dept 1996).