New York State Court of Claims

New York State Court of Claims

ZORDA v. THE STATE OF NEW YORK, #2002-019-545, Claim No. 103818, Motion No. M-65105


Claimant's motion for partial summary judgment based upon Labor Law 240 (1) cause of action resulting from fall from roof in which no safety device was provided is granted.

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:
HINMAN, HOWARD & KATTELL, LLPBY: James L. Chivers, Esq., of counsel
Defendant's attorney:
BY: Greene, Hershdorfer & SharpeLorraine Rann Mertell, Esq., of counsel
Third-party defendant's attorney:

Signature date:
July 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an order granting partial summary judgment on the issue of liability on the ground there is no triable issue of fact relative to the cause of action based upon Labor Law 240 (1). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 13, 2001.
  2. Notice of Motion No. M-65105, dated April 25, 2002, and filed April 29, 2002.
  3. Affidavit of James L. Chivers, Esq., in support of motion, sworn to April 25, 2002, with attached exhibits and deposition transcripts.
  4. Affidavit of Anita M. Zorda, in support of motion, sworn to April 24, 2002.
  5. Claimant's Memorandum of Law, in support of motion, dated April 25, 2002.
  6. Affidavit of Lorraine Rann Mertell, Esq., in opposition to motion, sworn to May 10, 2002, with attached exhibit.
  7. State's Memorandum of Law, in opposition to motion, dated May 10, 2002.
  8. Affidavit of Anita M. Zorda, in support of motion, sworn to May 16, 2002, and filed May 20, 2002.
  9. Claimant's Reply Memorandum of Law, in support of motion, dated May 16, 2002.
This Claim arose on December 20, 1999, at approximately 7:15 a.m., at a State project for the construction of a building located at the State University College of Technology in Delhi, New York (hereinafter sometimes "Project"). At the time of this incident, Claimant,[1] Anita Zorda, was a laborer employed by Sarkisian Brothers, Inc. (hereinafter "Sarkisian"), the general contractor on said Project. Claimant and a co-worker, Bruce McIntyre, reported to work at 7:00 a.m., and were instructed by their supervisor, Peter Fitzgerald, "[t]o go up on the roof and clean blocking and other materials from the roof that had been left there by other workers." (Affidavit of Anita M. Zorda, ¶ 3). Claimant had started her work on the roof when she slipped on ice or frost on a rubber membrane covering a portion of the roof, fell on her stomach and slid off the roof to the ground approximately 10 feet below landing on a concrete slab. The portion of the roof from which Claimant fell was a sloped roof estimated as a "four on twelve".[2] (Fitzgerald Deposition, p 16). It is undisputed that Claimant was not wearing any safety device at the time of her fall. The factual allegations relative to the presence of safety devices on the job site will be discussed at length hereinbelow. Claimant suffered various injuries including compound comminuted fractures of her right leg. A Notice of Intention was served on March 13, 2000. The Claim was personally served on the Attorney General's office on February 1, 2001 and filed with the Clerk of the Court on February 13, 2001.

This Claim alleges violations of Labor Law 200, 240 (1) and 241 (6). By way of this motion, Claimant seeks partial summary judgment on the Labor Law 240 (1) cause of action. In support of the motion, Claimant submits, inter alia, her own affidavits; her deposition transcript; as well as the deposition transcripts from Peter Fitzgerald, Sarkisian's Project superintendent, and Russell Doolittle, the site representative from the Project's architects.[3] In opposition, the State relies on these same submissions.

Based upon this record, the following facts are undisputed: Claimant was an experienced laborer in the construction field having worked on and off in the field since approximately 1985. Claimant recalled weekly safety meetings, also known as tool box meetings, held during her first period of work on this Project, but could not specifically recall any safety meetings during her second phase of work on this Project, although she indicated that they could have been held.[4] Claimant also recalled that during her first phase of work at the Project she had a safety harness customized to fit her due to her small size, that she put her name on it, and stored it in a gang box.[5] Claimant stated that her customized safety harness was not located in the gang box when she returned for her second phase of work. However, Claimant did recall seeing at least one harness during this second time period. Claimant also indicated that she knew she was likely supposed to be wearing a safety harness while working on a roof.

Mr. Fitzgerald, Sarkisian's Project superintendent, conceded that, on the morning of this accident, he did not give any safety device to Claimant; did not direct Claimant nor suggest to her that she should use any type of safety device on the roof; and that there were no safety devices available up on the roof. Mr. Fitzgerald did state, however, that "[t]here were safety harnesses with lanyards with a safety rope, three quarter, one inch safety rope, either in the gang box which was on the first floor of the building, the construction trailer." (Fitzgerald Deposition, p 23). Mr. Fitzgerald explained that safety devices are typically locked up each night in order to avoid theft. Russell Doolittle, the site representative for Dembling and Dembling Architects, also indicated in his deposition that fall protection devices were hanging on the inside of a shanty wall in a small storage shed about 300 feet from the building, in addition to the contractor's gang box. However, Mr. Doolittle concurred that there was no fall protection in place up on the roof at the time of Claimant's fall. Also, Mr. Fitzgerald and Mr. Doolittle both stated that weekly safety toolbox meetings were held.

It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]." (Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 491, rearg denied 87 NY2d 969). On a motion for summary judgment seeking a determination of liability on the part of an owner, a claimant need only show that Labor Law 240 (1) was violated and that the violation was a proximate cause of the resulting injuries.[6] (Gordon v Eastern Ry. Supply, 82 NY2d 555). A violation of the statute may be demonstrated by the failure of the owner to provide a necessary safety device required to give the worker proper protection. (Bland v Manocherian, 66 NY2d 452). Once the moving party has established its burden, "[t]he burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Of course, the Court must accept the non-moving party's evidence as true and grant him every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047). Moreover, the injured worker's negligence, if any, does not relieve an owner from liability who has failed to provide an adequate safety device in the first instance. (Stolt v General Foods Corp., 81 NY2d 918).

In viewing this record in the light most favorable to the non-moving party, this Court accepts the deposition testimony of Mr. Fitzgerald and Mr. Doolittle that safety harnesses were located in several spots throughout the site and that safety meetings were held on a weekly basis. That having been said, however, the proof is uncontroverted that no safety devices were up on the roof on the morning of Claimant's accident, although said devices were available elsewhere on the job site.

There is no doubt that Claimant's fall from this roof and the type of work she was undertaking are covered by Labor Law 240 (1). (Johnson v Packaging Corp. of Am., 274 AD2d 627, 628; Striegel v Hillcrest Hgts. Dev. Corp., 175 Misc 2d 698, affd 266 AD2d 809). In fact, the State's sole argument in defense is that there are questions of fact on whether Claimant's conduct was the sole proximate cause of the accident which would negate any liability under Labor Law 240 (1). More specifically, the State argues that "[s]ummary judgment on § 240 should be denied to [claimant] even if [claimant] is found not to be a recalcitrant worker, if there is a question whether [claimant] was the sole proximate case [sic] of the accident [citation omitted]." (State's Memorandum of Law, p 2). In support of this contention, the State points to Claimant's general construction experience; specific knowledge of safety devices elsewhere on the job site, as well as the previously stored custom fitted safety harness in the tool box; and her knowledge that safety harnesses were required when working on an elevated surface such as a roof. The State also raises the argument that Claimant needlessly stepped onto the portion of the roof with the rubber membrane and that if she had kept to the metal portion that a steel device would have broken her fall. (Mertell Affidavit, ¶ 7).

It is well-settled "[t]hat the 'sole proximate cause' defense should be limited to the situation where a worker has been provided with 'proper protection,' and the worker thereafter, through intentional misuse of the safety device, or via other egregious misconduct, neutralizes the protections afforded by the safety device." (McMahon v 42nd St. Dev. Project, 188 Misc 2d 25, 30). Here, there is no dispute that there were no safety devices provided on this roof, even though they were elsewhere on the job site. The State's argument, supported only by counsel's affirmation, that a steel device would have prevented Claimant's fall had she stayed on the metal portion of the roof is without any evidentiary value. (Hood v Murray, 25 AD2d 163, lv dismissed 17 NY2d 911). So, even if the Court were to accept the State's alleged litany of mistakes made by Claimant, such does not remove the fact that once a defendant fails to provide a safety device, as here, then any act on the injured worker's part can be nothing more than a contributing factor or comparative negligence. (Evans v Anheuser-Busch, Inc., 277 AD2d 874; Ortiz v SFDS Dev., 274 AD2d 341). Stated another way, only under the limited circumstances where the injured worker's actions are the "sole cause" of the accident, can the claimant's acts and/or omissions be converted from comparative negligence to the sole cause of the accident. As such then, once it is shown that the statute has been violated, which is the case here because no safety device was provided, then under no scenario can it be said that Claimant's conduct was the sole proximate cause of this accident. (Podbielski v KMO-361 Realty Assoc., 2002 NY Slip Op. 04450; DiVincenzo v Tripart Dev., 272 AD2d 904, 905). Finally, the Third Department has stated that "[t]he fact that safety harnesses and belts and lanyards were stored in a tool box on the back of the crane does not provide a defense [citations omitted]." (Lantry v Parkway Plaza, 284 AD2d 697, 698). In this Court's view, the State has failed to demonstrate that questions of fact exist regarding whether Claimant's own conduct was the sole proximate cause of this accident.

Consequently, for the reasons stated above, it is ORDERED that Claimants' motion for partial summary judgment on the Labor Law 240 (1) cause of action, Motion No. M-65105, is GRANTED.

The Clerk is directed to enter summary judgment on the issue of liability in favor of the Claimants. The parties will be contacted to schedule a conference prior to the trial on the issue of damages.

July 2, 2002
Binghamton, New York

Judge of the Court of Claims

[1]"Claimant" will refer solely to Anita M. Zorda inasmuch as the claim of Robert W. Zorda is derivative in nature.
[2]This phrase was further described as meaning "[a] rise of four inches in one foot, four inches and 12 inches." (Fitzgerald Deposition, p 16). The Court does not give any weight to Claimant's description in her deposition of this as a "flat" roof, since the proof clearly establishes otherwise. (Zorda Deposition, p 67).
[3]In addition, deposition transcripts from Robert Zorda, Claimant's husband; David Dembling, vice-president of the Project's architects; J. William Harniman, vice-president for administration at Delhi College of Technology, State University of New York; and Duncan Hughes, regional director of construction of the State University Construction Fund, were also submitted.
[4]Claimant worked on this Project during two separate time periods. The first time was for approximately five months between May and September 1999. The second phase was in early December 1999 until the date of her accident.
[5]A "gang box" is a large steel box with a lock for the storage of tools and safety equipment. (Fitzgerald Deposition, p 45).

[6]Labor Law 240 (1) states, in pertinent part, that all contractors and owners:

[s]hall 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.