New York State Court of Claims

New York State Court of Claims

BORBA v. THE STATE OF NEW YORK, #2002-016-036, Claim No. 101783, Motion No. M-63679


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):

Alan C. Marin
Claimant's attorney:
Seiden & KaufmanBy: Steven J. Seiden, Esq.
Defendant's attorney:
Smith Mazure Director Wilkins Young Yagerman & Tarallo, P.C.By: Stephen J. Molinelli, Esq.
Third-party defendant's attorney:

Signature date:
April 2, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Rogerio Borba has alleged that he was injured when he fell while working on a construction job in the early afternoon of July 16, 1999. This is his motion[1] for summary judgment, opposed by the defendant, on the issue of liability under Labor Law §240.1, commonly known as the scaffold law. To prevail under §240.1, a claimant must prove that the scaffold or ladder, among other devices, did not provide proper protection and that such failure proximately caused the injury. The essential facts are not in dispute. Mr. Borba was employed as a laborer by DeFoe Corporation, which was the general contractor for a New York State construction and repair project on the Prospect Expressway in Brooklyn (cl affirm, exh 6, ¶ 2). The task at the time involved replacing the large coping stones at the top of a wall on the south side of the eastbound Prospect Expressway between Fifth and Sixth avenues. The stones were 7- inch thick slabs, 24 by 19 inches, each weighing from 100 to 125 pounds. The wall was as high as 30 feet, but in the area where claimant was working, its height varied from 25 to 30 feet.
The ladder supplied by DeFoe was only 27 feet long when fully extended. Both Borba and a co-worker, Manny Castano, describe it as a "30-foot extension ladder" ( id., exh 6, ¶ 3; exh 7, ¶3), although each man asserted that its fully extended length was 27 feet. But defendant does not argue this possible disparity, which may simply be standard in the field; for our purposes, the 27-foot reach of the ladder is undisputed fact. When placed 6 or 7 feet away from the wall on the ground for proper balance (cl affirm, exh 6, ¶3), almost another foot is lost off the height against the wall.[2]

In order to replace the coping stones, claimant had to stand on the rung just below the top one: "the ladder never felt completely stable. If I stood on a lower rung, I could not reach and work on the stones, which are approximately 27 feet above the ground" (id., exh 6, ¶3). Borba was provided with a body harness and lanyard which was affixed by a "snap hook" to a "D-ring" on the back of the claimant's harness. (Def affirm, ¶12). The other end of the lanyard was attached to one of the vertical posts of the green railing on top of the wall (cl affirm, exh 5 and exh 6, ¶3).

Just prior to claimant's fall, one of the coping stones was being lowered into place on top of the wall by a cable above a chain link fence. Fearing that the stone, which was directly overhead, might fall on him, Borba pulled himself up from the ladder on top of the wall, crouching there with his lanyard still attached to one of the railing's posts.

After the stone was eased into position by the claimant with the help of Castano (who was on top of the wall safely ensconced between the railing and a chain link fence [cl affirm, exh 5]), Borba prepared to get back on the ladder in order to finish setting the stone by adding cement to the bottom and sides. To do so, the ladder was moved 5 or 6 inches to the right by another laborer, Scott. Claimant, still crouching on the wall, correspondingly moved by 5 or 6 inches the rope which was tied from the ladder to the railing to prevent the ladder from falling backward (id., exh 6, ¶4).

Claimant picks up the narrative:
I climbed back on the ladder and did additional work on the coping stone with the lanyard restricting my movements. I then had to unhook the lanyard which was to the left of the vertical post in the railing. I did not unhook the lanyard (and re-hook it to the right of the post) while I was crouching on the stone since there was less than a foot between the green railing and the edge of the stone . . . I did not want to be unhooked and take any chance of falling . . .

While on the ladder, I leaned over to the left and unhooked the lanyard. At that moment, the top of the ladder where I was standing started to slide away from me (to my right) causing me to lose my balance and fall to the ground almost 30 feet below [id.].

Defendant's response is unmindful of the inadequacy of Borba's equipment and the danger of his position, addressing instead what claimant should have done when he was crouching on the wall:
Mr. Borba states in his affidavit that prior to the occurrence, when the 125-pound coping stones were being lowered by a cable above his head he had climbed off the ladder to a position on top of the wall with his lanyard still attached to the rail . . . Thus, it is evident from this position the claimant could have moved the lanyard attachment from one (1) side of the vertical rail post to the other side of the vertical rail post without even having been on the ladder. [Def affirm, ¶¶ 13 and 14].

Labor Law §240.1 provides in relevant part that "all contractors and owners . . . shall furnish or erect, or cause to be furnished or erected . . . ladders . . . which shall be placed . . . to give proper protection." Merely because the ladder itself was not defective does not create a triable issue of fact. See Gordon v Eastern Railway Supply, Inc., 82 NY2d 555, 606 NYS2d 127 (1993); Izzo v AEW Capital Management, 288 AD2d 268, 733 NYS2d 201 (2d Dept 2001); Orellano v 29 East 37th Street Realty Corp., 2002 WL 453585 (1st Dept 2002).

Borba's equipment, the ladder (with the harness and lanyard), did not provide him with proper protection. In addition to a longer, more stable ladder (and safer tie-off equipment), claimant could have been provided with a man-lift so as to safely function from an elevated bucket, as he had on prior occasions when doing similar work for DeFoe (cl affirm, exh 6, ¶ 3).

Moreover, consider claimant's uncontradicted recollection in his affidavit that when he stepped back on the ladder from the wall, "the top of the ladder where I was standing started to slide away from me . . . " (Id., ¶4). In Sanango v 200 East 16th Street Housing Corporation, 736 NYS2d 321, 322 (1st Dept 2002), the appellate court ruled that, "[p]laintiff's deposition testimony that the ladder he was provided wobbled as he stepped on it to descend from a higher to a lower terrace, causing him to fall, entitles him to summary judgment on his Labor Law §240(1) claim absent evidence raising an issue of fact as to whether plaintiff's actions were the sole proximate cause of the accident [citations omitted]." See also Whalen v F.J. Sciame Construction Co., Inc., 198 AD2d 501, 604 NYS2d 174, 175 (2d Dept 1993), in which the ladder was caused to "sway."

The facts of claimant's fall are confirmed by his co-worker Castano, and not contested by the defendant. No view of the evidence suggests that claimant has not met the requisite of proximate cause. See also Felker v Corning Inc., 90 NY2d 219, 660 NYS2d 349 (1997).

* * *

In view of the foregoing, having reviewed the parties' submissions,[3] IT IS ORDERED that the motion (M-63679) of Rogerio Borba and Margareth Borba for summary judgment on liability under Labor Law §240.1 be granted. The parties will be contacted to schedule a conference prior to the trial on damages of this matter.

April 2, 2002
New York, New York

Judge of the Court of Claims

  1. [1] The claim of Margareth Borba is derivative of her husband's; consequently, references herein are in the singular to "Borba" and "claimant" and mean Rogerio Borba, except where the context indicates otherwise.
  2. [2] The Pythagorean calculation for the other side of a right triangle with one side 6 or 7 feet and a hypotenuse of 27 feet is 26.3 or 26.1 feet - - the square root of (27 squared less 6 or 7 squared).
  3. [3] The papers reviewed were the defendant's Affirmation in Opposition to Motion and the claimants' Notice of Motion, which included an Affirmation from counsel together with exhibits 1 through 10.