New York State Court of Claims

New York State Court of Claims

GAVALAS v. THE STATE OF NEW YORK, #2002-013-002, Claim No. 99450, Motion Nos. M-64211, CM-64330, CM-64380


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):
CM-64330, CM-64380
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Third-party defendant's attorney:

Signature date:
March 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On December 3, 2001, oral argument was heard and the following papers were read on Claimants' motion for partial summary judgment in their favor; on Defendant's cross-motion for summary judgment in its favor; and on Claimants' cross-motion for an order of preclusion:
1. Notice of Motion and Supporting Affidavit of Steven M. Zweig, Esq. ("Zweig Affidavit"), with Annexed Exhibits and Memorandum of Law (M-64211)

2. Notice of Cross-Motion and Affidavit of David L. Edmunds, Jr., Esq. ("Edmunds Affidavit") with annexed Exhibits and Memorandum of Law (CM-64330)

3. Cross-Notice of Motion of Steven M. Zweig ("Zweig Cross-Motion Affidavit"), with annexed Exhibits and Reply Memorandum of Law (CM-64380)

4. Affidavit in Opposition of David L. Edmunds, Jr., Esq. ("Edmunds Reply Affidavit")

5. Filed papers: Claim; Answer

On October 31, 1998, Claimant Jack Gavalas[1]
fell off a bridge abutment while working on the Oak Orchard River Bridge Project on Route 18 in Albion, New York. The New York State Department of Transportation (DOT) had contracted with Nicholas, Long and Moore Construction Corporation for the complete rehabilitation of the bridge. In October 1998, the project was nearing completion. Claimant was a foreman for a subcontractor, Erie Painting and Maintenance, Inc. (EPM), that was engaged in removing existing lead-based paint and applying new paint to the structure. State officials present at the project site on a regular basis were Scott Sullivan, engineer in charge; Daniel Roop, chief inspector; and Jeffrey Knapp, assistant inspector. The two State inspectors inspected the site on a daily basis and, according to Sullivan's deposition testimony, had the power to stop the work if it was being performed in an unsafe manner. The superintendent for the prime contractor also agreed that the State inspectors had this power.

EPM had installed a tarp under the bridge on which its employees would stand to remove the old paint and apply the new paint.[2] The tarp ran from one end of the bridge to the other and was fastened by clips (or shackles) to cables running under the bridge. Claimant had been working on the top of the bridge but was asked by the other EPM foreman to help take the tarp down. He walked down a path beside the bridge to access the underside, then along a concrete retaining wall to the point where he could reach the tarp by using a stepladder. He states that he was wearing a hard hat, a safety vest and a safety belt. Using the ladder, he climbed onto the tarp and joined other workers who were engaged in removing clips from the top of the vertical portions of the tarp so that they would fall onto the lower level.

Claimant did not use his safety belt to hook onto any part of the structure, stating at his deposition that he looked around but could not find anything to hook onto. Normally there would be two or three cables strung along the length of the tarp, but he believed that these had already been removed (Edmunds Affidavit, Exhibit J, at 77-78). This statement is disputed by Daniel Roop, chief inspector for the project, who states, without equivocation, that a fall protection cable was present for the entire length of the bridge on the day in question (Edmunds Affidavit, Exhibit O).

After approximately 20 to 30 minutes, when he was three-quarters of the way along the tarp, Claimant fell onto the ground near the abutment. He states that a clip behind him, one that was supporting his weight, came loose. In an affidavit submitted in support of Defendant's cross-motion (Edmunds Affidavit, Exhibit M), Athanasios Tsiolekis, an EPM foreman in charge who supervised Claimant and other workers, stated that as the crew removing the clips neared the end of the bridge, "I instructed the crew to descend from the tarpaulin to the ground and to use ladders placed on the ground to complete the tarp removal process." He did not watch as the workers came down from the tarp, only seeing Claimant after he was already lying on the ground. DiMitre Beltchev, a laborer who was part of the work crew, stated in an affidavit that Claimant did not come down at the same time as the others but remained on the tarp by himself (Edmunds Affidavit, Exhibit N). Significantly, both Tsiolekis and Beltchev state that at the time of the fall Claimant was not wearing a safety belt or a safety harness. There is also some dispute about the precise location of Claimant's fall and the distance that he fell (see, Zweig Affidavit, Exhibit L; Edmunds Affidavit, Exhibit M).
Motion and Cross-Motion for Summary Judgment
Claimants have moved for summary judgment (Motion No. M-64211) on the ground that, as a matter of law, they are entitled to judgment in their favor pursuant to Labor Law §240(1), the "scaffold law." Defendant has cross-moved for summary judgment in its favor (CM-64330) on the ground that Claimant was a "recalcitrant worker" to whom the protections of that statute do not apply.

Under Labor Law §240(1) , contractors and property owners are required to furnish or erect appropriate "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices" to provide proper protection for construction workers employed on the premises. The purpose of this statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494). The duty imposed by Labor Law § 240(1) is nondelegable, and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, e.g., Haimes v New York Tel. Co., 46 NY2d 132, 136-137). The statutory protection applies equally where workers are at an elevated height while performing the main work of the contract or while erecting and dismantling the scaffolds and other safety structures themselves (Alderman v State of New York, 139 Misc 2d 510; 52 NY Jur 2d, Employment Relations, §236).

In order to recover under this statute, it must be established that there was a violation -- i.e., that appropriate safety structures were not provided or that they were defective -- and that the violation was the proximate cause of the accident (Raczka v Nichter Utility Const. Co., 272 AD2d 874). Thus, the duty imposed by the statute "does not extend to workers who have adequate and safe equipment available to them but refuse to use it" (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 366, appeal dismissed 58 NY2d 824). To preclude liability under the recalcitrant worker defense, it must be established that appropriate safety devices were provided by the owner or employer and that the injured worker refused to make use of them (Stolt v General Foods Corp., 81 NY2d 918, 920; see, Jastrzebski v North Shore School Dist., 223 AD2d 677, affd 88 NY2d 946).

In the instant claim, a wealth of detail is provided in the affidavits and transcripts attached to the motion papers. Consideration of that material, however, leads to the inescapable conclusion that there are significant issues of material fact that remain unresolved. This was virtually conceded by both counsel at oral argument. In addition, many of the facts which must be decided -- including the precise cause of the accident -- will require an assessment of the credibility of all witnesses. Both the motion and cross-motion for summary judgment will be denied.
Cross-Motion for Order of Preclusion
Claimants raise two issues on their cross-motion, which is denominated a motion for an order of preclusion: (1) whether the State raised the "recalcitrant worker" defense even though it was not set forth in its answer; and (2) whether the State should be precluded from using the testimony of witnesses that it failed to identify in response to Claimants' omnibus discovery demands.

Must the Recalcitrant Worker Defense be Pled as an Affirmative Defense?

The recalcitrant worker doctrine, also referred to as the recalcitrant worker defense, was "born of decisional interpretations of Labor Law §240(1), [and] holds in essence that the absolute liability protection ordinarily provided by that statute does not extend to a worker who knowingly disregards instructions by deliberately refusing to use an available safety device" (Peterson v Barry, Bette & Led Duke, 171 Misc 2d 346, 348; see also, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824, supra). For the doctrine to apply, the worker's refusal must be knowing and deliberate, as mere negligent omission to use an available safety device, despite instructions to do so, will not support the defense (Gordon v Eastern Ry. Supply, 82 NY2d 555). For a defendant to avoid liability on this ground, it must be established that (1) appropriate safety devices were made available to the worker and their use required, and (2) the worker's injury was caused by his direct refusal to use those devices (Hagins v State of New York, 81 NY2d 921). Claimants contend that in the instant case Defendant cannot rely on this doctrine to defeat liability because it was not raised as an affirmative defense in the State's answer.

Defendant's answer contained the following statement as its first affirmative defense:

The respondent [sic], The State of New York, alleges upon information and belief, the culpable conduct of claimant, Jack Gavalas, if not the sole cause of the damages sustained by him in the accident alleged in the claim, contributed to such injuries and damages, and any damages otherwise recoverable by claimant in this action shall be diminished in the proportion which the claimant's culpable conduct bears to the culpable conduct which caused such damages.

Research has disclosed only one decision that addresses the issue of whether such a general statement of "plaintiff's culpable conduct" is sufficient to raise a defense based on the recalcitrant worker doctrine. In Vasquez v G.A.P.L.W. Realty (254 AD2d 232), the plaintiff claimed that he was unaware of the recalcitrant worker defense at the point that discovery was closed off and contended that that lack of awareness constituted a special or unusual circumstance which warranted an order permitting additional discovery after the note of issue had been filed. The First Department declined to rule on the issue, stating:

Assuming arguendo the allegation in the answers of "plaintiff's culpable conduct" was insufficient to raise a "recalcitrant worker" defense (cf., Stolt v General Foods Corp., 81 NY2d 918), we nevertheless affirm [the denial of the motion], on the ground that plaintiffs waived objection to any such pleading defect by addressing the recalcitrant worker defense at length on the merits on the prior motion for summary judgment....

(id., at 232.)[3]

In my view, the traditional "plaintiff's culpable conduct" defense simply does not relate to the recalcitrant worker doctrine. It is well-established that an injured worker's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that culpable conduct (i.e., ordinary negligence) on the part of the worker does not and cannot operate to reduce the owner/contractor's liability under this statute (Kazmierczak v Town of Clarence, 286 AD2d 955, citing, Stolt, supra; Bland v Manocherian, 66 NY2d 452). The traditional language of the "culpable conduct" defense, which encompasses any type of actions on the part of the injured party and inevitably refers to apportionment of damages, is a singularly inappropriate way to assert that by his deliberate refusal to use available safety devices, the worker placed himself outside the protection of the statute.

The more critical question, however, is whether the doctrine must be specifically raised by Defendant at all. CPLR 3018(b) requires that affirmative defenses must be set forth in the responsive pleading when they relate to matters that, if not pleaded, "would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading." According to one noted commentator, it is the second criteria -- whether the issues raised by the defense appear "on the face of a prior pleading" -- that most frequently determines whether a matter falls into (or out of) the category of those that must be pled as affirmative defenses. "[I]f the plaintiff's complaint states a cause of action, fully complying with CPLR 3013 in that regard, but nothing it contains touches on the matter the defendant wants to raise against the complaint, the matter must be treated as an affirmative defense and pleaded as such" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:13, at 155).

In the claim under consideration here, Claimant alleged, among other things, that Defendant violated Labor Law §240(1) by failing to provide appropriate safety devices (¶ 11), and that the injury to Claimant was caused by Defendant's breach of its statutory duty (¶ 13).[4] To recover under this statute, therefore, a claimant must allege and prove, among other things, that the defendant failed to provide appropriate safety devices or that those provided were inadequate or defective (see, e.g., Zimmer v Chemung County Performing Arts, 65 NY2d 513, supra; Felker v Corning, Inc., 90 NY2d 219) and that at least a proximate cause of his or her injury was the absence of safety equipment or the inadequacy or defective nature of the devices provided (see, e.g., Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). A defendant's general denial places these elements into issue. By opposing claimant's primary proof, a defendant will inevitably seek to establish that appropriate and adequate safety devices were provided and their use required and/or that the injury was not caused, even in part, by a violation of the statute.

Viewed in this fashion, the recalcitrant worker doctrine does not appear to be so much a separate, unique "defense" as it is simply another way of recognizing that a worker may not recover under Labor Law §240(1) unless he can prove the owner/contractor breached its statutory duty and that that breach was a proximate cause of his injury. If something else -- including the worker's own actions -- was the sole proximate cause of the injury, or a superseding cause that negated the effect of any statutory violation on the part of defendant, the worker may not recover under Section 240(1) (see, Weininger v Hagedorn, 91 NY2d 958, as explained in Secord v Willow Ridge Stables, 179 Misc 2d 366 [worker's injury may have been caused by his improper use of safety device, standing on the crossbar of a ladder rather than the steps]; Egan v A.J. Construction Corp., 94 NY2d 839 [worker's decision to jump from stalled elevator was "superceding" cause of his injury). I believe that the recalcitrant worker doctrine is simply another way of expressing this fundamental requirement.

Decisions in which there have been rulings on the recalcitrant worker defense also frequently contain discussion about whether the worker's "recalcitrant" actions were the sole proximate cause of his injury (see, e.g., Harrington v State of New York, 277 AD2d 856 [worker's decision to make improper use of a containment tarp as a "slide" to reach lower level established that he was a recalcitrant worker and, in addition, was the sole proximate cause of his injury]; Jamison v GSL Enterprises, 274 AD2d 356 [question of fact as to whether worker's action in unhooking his safety line made him a recalcitrant worker and, also, whether that action was the sole proximate cause of his injury]; Cannata v One Estate, 127 AD2d 811 [worker's decision to refuse to use ladder and, instead, stand on stacked boxes made him a recalcitrant worker and also was the sole proximate cause of his injury). Even where courts have not framed the discussion in terms of causation, it is evident that the very actions that are said to show the worker to be recalcitrant would also provide a credible basis for concluding that they were the sole proximate cause of the injury (see, Jastrzebski v North Shore School Dist., 223 AD2d 677, supra [a worker was ordered to get off a ladder and use a scaffold but immediately got back on the ladder as soon as supervisor left]; Watso v Metropolitan Life Ins. Co., 228 AD2d 883 [jury could conclude that a worker purposefully did not tie off his safety line prior to fall]).

I conclude, therefore, that an owner/contractor is not obliged to raise the "recalcitrant worker doctrine" as an affirmative defense, because the facts on which the so-called defense depends -- specifically, determining whether Defendant breached its statutory duty and identifying the cause or causes of the worker's injury -- are already placed into issue by Claimant's allegations of breach of duty and causation and Defendant's general denial of those allegations.

The final relief sought by Claimants is an order precluding Defendant from making use of the testimony of two witnesses. Although a Note of Issue was filed some time ago, counsel for Claimants contends that full prosecution of this action has been hindered because the importance of these witnesses, Athanasios Tsiolekis and DiMitre Beltchev, only came to light in connection with these motions. Claimants' counsel admits that both parties were aware of the names of these witnesses early on, while defense counsel acknowledges that the witnesses were not interviewed until after the close of discovery, in connection with the instant motions for summary judgment. Claimants' alternative request for additional time in which to depose these witnesses is not opposed by Defendant. The motion will be denied and an extension of time granted.

Claimants' motion, Defendant's cross-motion, and Claimants' cross-motion are all denied.

March 21, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Kalotina Gavalas is derivative in nature. Unless otherwise indicated or required by the context, the term "Claimant" will refer to Jack Gavalas.
  2. [2]Although some of the contract documents called for this work to be done from a staging platform, Claimant testified at his deposition that this would not have been possible because the material being removed had to be contained and could not be released in the atmosphere (Edmunds Affidavit, Exhibit J, at 62-63). In any event, the issue in this claim is whether Defendant provided appropriate, functioning safety devices, not whether there was compliance with all contract provisions.
  3. [3]Little guidance can be drawn from Stolt v General Foods Corp. (supra, at 920), in which the Court of Appeals stated, "The mere allegation that plaintiff had disobeyed his supervisor's instructions when he climbed the broken ladder does not provide a basis for a defense against plaintiff's Labor Law §240(1) cause of action." Stolt related to a motion for summary judgment, and it is not clear whether the allegation referred to was one contained in a pleading or in a supporting affidavit.
  4. [4]The claim also alleged that the injuries "came about solely as the consequence of the respondent's [sic] negligence and through no fault of the claimants whatsoever" (Claim, ¶ 16). This allegation most naturally relates, however, to other causes of action, such as those brought under the common law or Labor Law §200, where comparative negligence would be a factor.