New York State Court of Claims

New York State Court of Claims

DOS SANTOS v. THE STATE OF NEW YORK, #2002-010-016, Claim No. 102028, Motion No. M-64303


Claimant's motion for summary judgment is denied.

Case Information

GUILHERME DOS SANTOS, Administrator of the Estate of ADELZINDO FORTES, Deceased
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):

Terry Jane Ruderman
Claimant's attorney:
KELNER & KELNER, ESQS.By: Gail S. Kelner, Esq.
Defendant's attorney:
Attorney General for the State of New York
By: Nicoletti, Gonson & BielatAngela A. Lainhart, Of Counsel
Third-party defendant's attorney:

Signature date:
March 11, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on claimant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Affirmation in Opposition, Memorandum of Law, Affidavit in Opposition...........2

Reply Affirmation......................................................................................................3

Claimant, the administrator of the estate of Adelzindo Fortes, seeks summary judgment on the issue of liability based upon a Labor Law § 240(1) claim. The following facts are undisputed. On November 10, 1998, pursuant to a contract between Ahern Painting Contractors and the State, an employee of Ahern, was engaged in the preparation and painting of the underside of an overpass located on the northbound Sprain Brook Parkway near Route 100-Hawthorne exit ramp in the Town of Mount Pleasant. Fortes worked from a standing position on top of a lift box that was raised hydraulically from a truck parked near the site to be painted. The box was equipped with a guiderail system to protect workers from falling and workers were provided with a harness, lanyard and safety cable to secure themselves. Fortes, however, had unhooked himself while waiting to be lowered and "was not tied in" to a fall restraint at the time of the accident (Claimant's Motion Papers, Ex. B, pp. 94-95). The truck toppled and claimant was thrown to the ground and sustained injuries which resulted in his death. Claimant contends that the cause of the accident was the placement of the truck at an unsafe angle on the side bank of the parkway and that defendant is absolutely liable under Labor Law § 240(1).

Defendant opposes the motion arguing that claimant was provided with adequate safety devices and that there is at least an issue of fact as to whether the devices provided were inadequate.

Labor Law §240 Scaffolding and other devices for use of employees provides in pertinent part:
1. All contractors and owners * * * in the *** painting *** of a *** 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.

Section 240(1) has been interpreted to impose absolute liability for a breach which has proximately caused an injury (see, Rocovich v Consolidated Edison Co., 78 NY2d 509; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521). The duty imposed by §240(1) is nondelegable and an owner is liable for a violation of the section even where the job was performed by an independent contractor over which the owner exercised no supervision or control (see, Haimes v New York Tel. Co., 46 NY2d 132). Negligence, if any, of the injured worker is of no consequence (see, Zimmer v Chemung County Performing Arts, supra). Labor Law §240(1) was intended to apply in cases where there are "risks related to elevation differentials" because of the special hazards in having to perform work under such conditions (Rocovich v Consolidated Edison Co., supra).

There is no dispute with regard to the applicability of Labor Law § 240(1) to this elevation related injury and death. Rather, defendant contends that, unlike a case where safety devices were not provided, here devices were provided, however, there is an issue of fact as to whether they were adequate. Conspicuously absent from defendant's papers is any allegation that claimant had refused to use the provided devices. However, on the papers before this Court, it is not clear what the proper safety procedure was for dismounting the truck and whether claimant was supposed to be tied in at that time. Additionally, even if claimant should have been tied in, there are issues of fact as to the devices's impact on claimant's injuries and proximate cause.

Accordingly, claimant's motion for summary judgment is DENIED.

March 11, 2002
White Plains, New York

Judge of the Court of Claims