New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2002-016-072, Claim No. 99807, Motion No. M - 64320


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):
M - 64320
Cross-motion number(s):

Claimant's attorney:
Joshua Gropper, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, AAG
Third-party defendant's attorney:

Signature date:
July 2, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Miguel Garcia has alleged that, while painting the structure at 22-64 94th Street in Queens County, a property owned by the State, he fell from the ladder that he was working on and was injured (cl affirm, exh B). Mr. Garcia's work was part of a contract the State had entered into with his employer, Geneva Staffing Services, Inc. (Cl atty affirm, ¶6). This is claimant's motion for summary judgment on liability pursuant to Labor Law §240.1, often referred to as the scaffold law. The defendant's opposition to the motion is two-fold: (1) questions of fact exist that prevent summary judgment; and (2) the accident situs, a group home operated by the State's Office of Mental Retardation and Developmental Disabilities, falls within the statutory exception for owners of one- and two-family dwellings.
An injury that results from an elevation-risk comprehended by Labor Law §240.1 subjects the owner of a construction site to strict liability. To prevail under §240.1, a claimant must prove that the scaffold or, in this case, the ladder, did not provide proper protection and that such failure was a proximate cause of the injurious result. Bland v Manocherian, 66 NY2d 452, 497 NYS2d 880 (1985).

The only facts presented as to how Garcia fell come from Mr. Garcia himself - - from his notice of intention to file a claim (cl affirm, exh A); the claim (id. Exh B); his deposition testimony taken February 1, 2000 (def affirm, exh F); and claimant's affidavit of November 7, 2001. That claimant is the only source of what happened is not a barrier to his prevailing on this motion. Klein v City of New York, 222 AD2d 351, 635 NYS2d 634 (1st Dept 1995), aff'd 89 NY2d 833, 652 NYS2d 723 (1996).

On the morning of November 17, 1997, Garcia was in the process of painting the exterior of the 94th Street premises and had been given a metal extension ladder that was "wobbly and did not have secure ‘feet'... [then] the unsecured ladder upon which I was working wobbled and I fell to the ground, approximately fifteen (15) feet below." He had not been provided with a "safety belt, harness or lifeline. There were no ropes, wires or stays..." (aff ¶¶3, 4 & 6). Before the fall, he had been in that position, a story and a half above the ground,[1] for about 15 to 20 minutes. The date of his injury was his fifth working day painting the exterior of the group home. (Def affirm, exh F, pp 25-26 and p 5).

The foregoing is not inconsistent with the description contained in the notice of intention: "[t]he ladder upon which I was working twisted and I fell approximately 15 feet to the ground below" (¶2). That is to say, under these circumstances, twisting is not inconsistent with wobbling.

Garcia's deposition in early 2000 does raise some questions (perhaps it simply lacks focus), but does not undercut my conclusion that the ladder wobbled, which is supported by Garcia's down-to-earth image that the ladder did not have "secure feet." This image, as well as Garcia's other recollections, are left unchallenged by defendant. The following exchange took place in the deposition, and there was no followup or reference as to the ladder wobbling, twisting, or otherwise moving:

Q. During those four times [four prior days working at the site], did you have any problem with the ladder prior to the accident?

A. A little bit ... I could have used better shoes on the bottom to grip [Def affirm, exh F, p 15].

Garcia added that he complained to his boss, George Ortega, on two occasions that "the ladder was no good, I could have used better shoes." [Id.].

Defendant's papers contained nothing to disprove that the ladder wobbled or twisted. That the ladder itself was not defective does not create a triable issue of fact (for that matter, a lack of "secure feet" may bring it within the defective realm). 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., 292 AD2d 289, 740 NYS2d 16 (1st Dept 2002).

The Second Department has ruled that whether a scaffold or ladder provides proper protection remains an open factual question only in those instances where the device does 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, 706 NYS2d 450, 451 (2d Dept 2000). See also Whalen v F.J. Sciame Construction Co., Inc., 198 AD2d 501, 502, 604 NYS2d 174, 175 (2d Dept 1993): "defendants failed to rebut the plaintiffs' contention that Robert Whalen fell from the ladder because it was unsecured, and was caused to sway when a person was on it."

If the ladder moves, the inquiry is beyond the case cited by defendant, Williams v Dover Home Improvement, Inc., 276 AD2d 626, 627, 714 NYS2d 318, 319 (2d Dept 2000): "A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law §240(1)..." In Williams, there was a disagreement between plaintiff and his coworker on a basic fact - - whether the ladder shifted to the right.

In Orellano, supra, a construction worker fell from an A-frame ladder while installing a light fixture as part of a building renovation. The First Department, reversing the trial court below, held that summary judgment was in order:
There were no apparent defects in the ladder, nor was the floor on which the ladder rested defective. There were no protective devices on the ladder that would have prevented plaintiff's fall. Orellano, who was alone when the accident occurred, gave several explanations as to what caused him to fall. The ladder may have shifted as Orellano reached to affix a bolt that was the furthest from where he was standing on the ladder, or his foot may have slipped from the ladder's rung, or he may have simply lost his balance...It is sufficient for purposes of liability under Section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent . . . ." [740 NYS2d at 17-18 (citations omitted)].
With regard to proximate cause, no view of the facts as they have been submitted suggests the violation of §240.1 was not the proximate cause of Garcia's accident. See Felker v Corning Inc., 90 NY2d 219, 660 NYS2d 349 (1997). Finally, the State of New York, even in its efforts to find non-institutional, home-like settings for developmentally disabled persons, is not exempt from Labor Law §240.1 liability by virtue of that statute's exemption for one- and -two family dwellings. See Bartoo v Buell, 87 NY2d 362, 639 NYS2d 778 (1996).
In view of the foregoing, having considered the parties' submissions,[2] IT IS ORDERED that the motion of Miguel Garcia for summary judgment on liability under Labor Law §240.1 be granted.

July 2, 2002
New York, New York

Judge of the Court of Claims

[1] The Claim states Garcia fell two stories (cl affirm, exh B, ¶4).

[2] From the claimant: Notice of Motion and Attorney's Affirmation together with the Affidavit of Miguel Garcia containing exhibits A through E; Memorandum of Law; and Reply Affirmation containing exhibit A. From the defendant: Affirmation in Opposition together with the sworn statement of Francine Watnick contining exhibits A through G.