New York State Court of Claims

New York State Court of Claims

STANISLAUS v. STATE OF NEW YORK, #2002-019-553, Claim No. 98974, Motion No. M-64554


Synopsis


Claimant's motion for partial summary judgment on Labor Law 240 (1) and to strike the State's First and Sixth affirmative defenses is denied; Court found question of fact as to whether Claimant's conduct of walking down ladder backwards was the sole proximate cause of his injuries.

Case Information

UID:
2002-019-553
Claimant(s):
THOMAS STANISLAUS Claimant's name is listed as "Thomas Stanislaus" on the pleadings in this matter. However, it appears from this record that Claimant's correct name may be "Stanislaus Thomas". In fact, at Claimant's deposition, it appears that counsel for the parties stipulated to amend the caption to reflect this correction, although the transcript is somewhat confusing in that there is a reference, most likely a typographical error, to "Thomas Berkowitz". (Claimant's Exhibit E, p 4). In any event, no stipulation has yet been filed. Due to this confusion the Court will not sua sponte amend the caption, but rather suggests the parties file a stipulation correcting the caption if appropriate. For purposes of continuity, the Court will continue to refer to the Claimant as listed on the pleadings as "Thomas Stanislaus".
Claimant short name:
STANISLAUS
Footnote (claimant name) :
Claimant's name is listed as "Thomas Stanislaus" on the pleadings in this matter. However, it appears from this record that Claimant's correct name may be "Stanislaus Thomas". In fact, at Claimant's deposition, it appears that counsel for the parties stipulated to amend the caption to reflect this correction, although the transcript is somewhat confusing in that there is a reference, most likely a typographical error, to "Thomas Berkowitz". (Claimant's Exhibit E, p 4). In any event, no stipulation has yet been filed. Due to this confusion the Court will not sua sponte amend the caption, but rather suggests the parties file a stipulation correcting the caption if appropriate. For purposes of continuity, the Court will continue to refer to the Claimant as listed on the pleadings as "Thomas Stanislaus".
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):
STATE OF NEW YORK
Third-party defendant(s):
INVESTORS INSURANCE COMPANY OF AMERICA
Claim number(s):
98974
Motion number(s):
M-64554
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
BISOGNO & MEYERSONBY: Michael C. Meyerson, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Melito & Adolfsen, P.C.Amy C. Clauss, Esq., of counsel
Third-party defendant's attorney:
MELITO & ADOLFSEN, P.C.BY: Amy C. Clauss, Esq., of counsel
Signature date:
July 29, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for partial summary judgment on the issue of liability under Labor Law 240 (1) pursuant to CPLR 3212. 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 September 16, 1998.
2. Verified Answer, filed October 26, 1998.
3. DECISION AND ORDER, Lebous, J., Claim No. 98974, Motion Nos. M-62856, M-64113 & CM-63062, filed December 28, 2001
4. Motion for Summary Judgment, Motion No. M-64554, dated January 8, 2002, and filed January 10, 2002.
5. Affirmation of Michael C. Meyerson, Esq., in support of motion, dated January 8, 2002, with attached exhibits.
6. Memorandum of Law, in support of motion, dated January 8, 2002.
7. Affirmation of Amy C. Clauss, Esq., in opposition to motion, dated April 10, 2002, and filed April 18, 2002, with attached exhibit.
8. Memorandum of Law of the Defendant, in opposition to motion, dated April 10, 2002.
9. Reply Affirmation of Michael C. Meyerson, Esq., in support of motion, dated June 12, 2002, and filed June 13, 2002.


On July 27, 1998, Claimant was employed as a general laborer for Maria Maintenance and was working on a highway construction project on the Belt Parkway in Queens County, New York. This project was part of a contract between Maria Maintenance and the State for the rehabilitation of five bridges in the Town of Hempstead. The facts surrounding this accident are undisputed by the State. Claimant's primary piece of proof on this motion is his own deposition testimony regarding the manner in which this accident occurred. More specifically, Claimant stated at his deposition that he had just resumed jack hammering concrete while suspended on scaffolding under an overpass after a coffee break when he realized that he had left his goggles at ground level. Claimant indicated that he descended a ladder, which was unsecured and not being held by anyone, adjacent to the scaffold. Claimant described the ladder as approximately six feet tall with six steps. Claimant stated that the ladder became unsteady and shook when he was approximately half-way down causing him to fall to the ground below. Claimant conceded in his deposition that he descended the ladder in a rush while facing away from the ladder itself, factors which will be discussed in more detail hereinbelow.


This Claim was filed with the Clerk of the Court on September 16, 1998 and served on the State by certified mail, return receipt requested, on September 17, 1998. The Claim contains theories of liability based upon Labor Law 200, 240 and 241, as well as common law negligence. The State filed a Verified Answer on October 26, 1998, containing numerous affirmative defenses including Claimant's own culpable conduct (First Affirmative Defense), assumption of the risk (Second Affirmative Defense), and the recalcitrant worker defense (Sixth Affirmative Defense). Claimant filed a Note of Issue on January 26, 2001, but no trial has yet been scheduled.[1] In this Court's Decision & Order addressing the insurance issues, Claimant was permitted 60 days from the filing date thereof to submit his motion for summary judgment. This motion is in compliance with the terms of said Decision & Order.


By way of this motion Claimant seeks dual relief: (1) a motion for partial summary judgment on the issue of liability under Labor Law 240, and (2) an order striking the State's First, Second, and Sixth affirmative defenses.[2] The State has represented that it withdraws its Second Affirmative Defense asserting assumption of the risk. This Court will address the remaining issues simultaneously since they are intermingled.


On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). 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]."[3] (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491, rearg. denied 87 NY2d 969). To prevail under Labor Law 240 (1), a claimant must prove that the ladder did not provide proper protection and that such failure was a proximate cause of his injury. (Bland v Manocherian, 66 NY2d 452). However, although comparative negligence is not a defense, a worker who is "recalcitrant" as to the use of safety equipment may not recover under the statute. (Jastrzebski v North Shore School Dist., 223 AD2d 677, affd 88 NY2d 946).


Initially, the Court notes that there is no question here that Claimant was engaged in the type of protected activity covered by Labor Law 240 (1). (Joblon v Solow, 91 NY2d 457). Claimant's uncontested allegations that he fell while descending an unsecured ladder constitute a prima facie case pursuant to Labor Law 240 (1) and, as such, the burden shifted to the defendant. (Bryan v City of New York, 206 AD2d 448; Whalen v Sciame Const. Co., 198 AD2d 501).


The State attempts to meet its burden by contending that partial summary judgment is not warranted because there are questions of fact as to whether Claimant's own action of rushing down the ladder facing the wrong direction was the sole proximate cause of this accident. In reply, Claimant cites various cases which recite the well-recognized principle that a worker's comparative fault is not a defense in a Labor Law 240 (1) claim. Claimant cites Podbielski v KMO-361 Realty Assoc., __ AD2d __, 2002 Slip Op 04450 [2nd Dept, May 28, 2002], in which the Second Department stated an injured worker's intoxication cannot be the sole proximate cause of an accident because of the lack of a safety device as well. In Podbielski, the Second Department also indicated that the lack of a safety device was demonstrated to have been a proximate cause of the accident, thereby precluding the possibility that the decedent's intoxication was the sole proximate cause. However, in this Court's view, the facts presented on this motion appear more in line with the Second Department's reasoning in Anderson v Schul/Mar Const. Corp., 212 AD2d 493, appeal after remand 258 AD2d 605, lv denied 93 NY2d 813. In Anderson, the Second Department was faced with a similar situation, also from an unsecured ladder, in which a worker "[f]ell when he missed a rung while descending the ladder as a person would descend a staircase, i.e., facing away from and not holding onto the ladder, carrying a cup of coffee in one hand and his breakfast in the other."[4] (Anderson v Schul/Mar Const. Corp., 212 AD2d 493). The Second Department concluded that "[g]iven the plaintiff's obvious misuse of the ladder, a reasonable fact finder might conclude that the plaintiff's conduct was the sole proximate cause of his injuries [citations omitted]. (Id. at 493; see also, Styer v Vita Constr. v Lumex, 174 AD2d 662 [reasonable fact finder might conclude that partial dismantling of ladder was the sole proximate cause of the collapse]; Richardson v Matarese, 206 AD2d 353 [question of fact presented as to whether moving 800 pound radiator without breaking it up in pieces as instructed was sole proximate cause of injuries]).


In view of the factual similarity between Anderson and the case at bar, this Court finds that the State has met its burden of establishing a question of fact as to whether Claimant's own conduct of walking down the ladder while facing away from it was the sole proximate cause of his injuries. Consequently, this Court finds that Claimant's motion for partial summary judgment on the issue of liability under Labor Law 240 and an order striking the State's First and Sixth affirmative defenses must be denied.


Accordingly, in light of the foregoing, it is ORDERED that the Claimant's motion for partial summary judgment, Motion No. M-64554, is DENIED.


July 29, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Initially, the delay was due to the State's third-party suit against Investors Insurance Company of America regarding insurance defense issues and now, of course, because of the pending motion. (22 NYCRR 206.12 [g]). These matters were not severed. (Stanislaus v State of New York, Ct Cl, December 28, 2001, Lebous, J., Claim No. 98974, Motion Nos. M-62856, M-64113, CM-63062).
[2]The Court disagrees with the State's characterization that "Claimant has moved, not for summary judgment on the issue of liability, but rather for partial summary judgment striking the State's First, Second and Sixth Affirmative Defenses." (State's Memorandum of Law, p 2). This Court views Claimant's motion papers as seeking both partial summary judgment and an order striking these three affirmative defenses.

[3]Labor Law 240 (1) states, in 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.
[4]There is nothing in Claimant's deposition about whether he was holding onto the ladder as he descended facing away from it. In any event, in this Court's view, the more pertinent issue is the backwards manner of descent.