New York State Court of Claims

New York State Court of Claims

FIORELLI v. THE STATE OF NEW YORK, #2002-019-559, Claim No. 98669, Motion Nos. M-65458, CM-65465


Synopsis


Claimant's motion for partial summary judgment based upon Labor Law 240 (1) cause of action is granted; State's cross-motion based upon recalcitrant worker, sole proximate cause, and assumption of the risk arguments is denied.

Case Information

UID:
2002-019-559
Claimant(s):
JOSEPH FIORELLI and DONNA FIORELLI
Claimant short name:
FIORELLI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98669
Motion number(s):
M-65458
Cross-motion number(s):
CM-65465
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LACHMAN & GORTONBY: Peter A. Gorton, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Coughlin & Gerhart, LLPJames P. O'Brien, Esq., of counsel
Third-party defendant's attorney:

Signature date:
September 3, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for an order granting partial summary judgment on the issue of liability based upon Labor Law 240 (1). The State of New York (hereinafter "State") opposes the motion and cross-moves for an order granting summary judgment based upon various affirmative defenses.


The Court has considered the following papers in connection with these motions:
1. Claim, filed July 22, 1998.
2. Kouros v State of New York, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 & CM-60664, filed June 22, 2000.
3. Notice of Motion No. M-65458, dated July 8, 2002, and filed July 9, 2002.
4. Affirmation of Peter A. Gorton, Esq., in support of motion, dated July 8, 2002, with attached exhibits.
5. Deposition transcript of Joseph Fiorelli, taken on May 3, 1999.
6. Notice of Cross-Motion No. CM-65465, dated July 9, 2002, and filed July 10, 2002.
7. Affidavit of James P. O'Brien, Esq., in opposition to motion and in support of cross-motion, sworn to July 9, 2002, with attached exhibits.
  1. Affidavit of Peter A. Gorton, Esq., in support of motion and in opposition to cross-motion, sworn to July 12, 2002, and filed July 16, 2002, with attached exhibit.
9. Affidavit of Joseph Fiorelli, in support of motion and in opposition to cross-motion, sworn to July 11, 2002.
10. Affidavit of James P. O'Brien, Esq., in support of cross-motion and in opposition to motion, sworn to July 15, 2002, and filed July 16, 2002, with attached exhibit.

This Claim arose on June 23, 1998 at a State owned bridge where State Route 17 and Interstate 81 span the Chenango River in Binghamton, New York. Claimant's[1] employer, Promo-Pro Ltd., had been hired by the State to refurbish the bridge. Claimant, along with two of his co-workers, James Kouros and Emmanuel Fotinos, were in the process of assembling a suspended scaffold under the bridge when the scaffold collapsed, dropping them to the river approximately 50 feet below. As of the date of the accident, Claimant had only been employed by Promo-Pro Ltd. for approximately one week.


This Claim was served on the Attorney General's office on about June 20, 1998 by way of certified mail, return receipt requested, and filed with the Clerk of the Court on July 22, 1998. The 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 this motion, Claimant submits, inter alia, his own affidavit and selected portions of his deposition transcript. Most notably, however, Claimant relies upon a decision from the Third Department resulting from his co-worker's claim arising from this same accident (Kouros v State of New York, 288 AD2d 566), as well as the trial court's decision which it affirmed (Kouros v State of New York, Ct Cl, June 22, 2000, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 & CM-60664). Not surprisingly, Claimant argues that the Third Department's decision controls here, while the State argues that this case is distinguishable from Kouros despite the fact that they arose from the same incident.


Despite the State's arguments to the contrary, the factual similarities between Kouros and the case at bar are striking and significant. For instance, in Kouros, the Appellate Division recited the following facts:

Claimant was provided with, and was wearing, a body harness to which two five-foot lanyards were attached at the waist, and the lanyards were connected to a safety line which was available and in place....Because of the presence of the pier, however, the safety line was not continuous from one section of the scaffold to the other, necessitating unhooking on one side of the pier and rehooking on the other....


Claimant's undisputed testimony is that he unhooked the lanyards from the safety line at the pier, crossed the pier and stepped on the scaffold which collapsed before he could reattach his lanyards....


(Kouros, 288 AD2d at 566-567).



By way of comparison, Claimant here was also provided and was wearing a body harness, two lanyards were attached to the body harness at his waist, and the lanyards were connected to a safety line, although the safety line was not continuous across the bridge because of the presence of several piers or beams. As in Kouros, Claimant here was wearing his body harness while working and started to leave for lunch and unhooked his lanyards to traverse a beam and was in the process of switching the lanyard from one hand to the other when the scaffold collapsed. (Claimant's Exhibit 5, pp 21-22).


Labor Law 240 (1) requires that safety devices be "constructed, placed and operated as to give proper protection" to a worker. The statute has been interpreted to impose absolute liability for a breach which has proximately caused an injury. (Rocovich v Consolidated Edison Co., 78 NY2d 509). Negligence, if any, of the injured worker is of no consequence. (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054). The State attempts to distinguish the facts at bar from Kouros are unpersuasive. Claimant's submissions establish prima facie entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law 240 (1). (Gordon v Tishman Constr. Corp., 264 AD2d 499, 501-502).


The State cross-moves for summary judgment based upon the recalcitrant worker, sole proximate cause, and assumption of the risk arguments. More specifically, as in Kouros, the State asserts that it has established the recalcitrant worker defense as a matter of law or, at least, raised a question of fact relative thereto warranting denial of Claimant's summary judgment motion. The State attempts to argue that Claimant here made a deliberate decision to unhook both lanyards simultaneously while traversing a beam as compared to the mere negligence attributed to Mr. Kouros for essentially the same actions. The State's arguments must fail for the same reasons outlined in Kouros based upon the Appellate Division's conclusion that:

[w]here the evidence shows that claimant was wearing the body harness and was attached to the safety line while performing his work, defendants have failed to establish a deliberate refusal to use the equipment. Claimant, as a matter of law, cannot be deemed to be a recalcitrant worker solely because he was not so attached when the other safety device, i.e., the scaffold, collapsed. Even if the disputed issue of fact were to be resolved against claimant, his failure to have at least one lanyard attached to the static line at all times establishes only that he was negligent in detaching both lanyards and in failing to reattach to the safety line after crossing the pier and prior to the collapse of the scaffold. A worker's contributory negligence, however, is not a defense to a Labor Law § 240 (1) claim [citations omitted].


(Kouros, 288 AD2d at 567).



Based upon the Third Department's conclusions stated above, this Court finds that Claimant cannot be deemed to be a recalcitrant worker solely because he was not attached when the scaffold collapsed and that, at worst, his decision to unhook both lanyards is the equivalent of comparative negligence which is not a defense to liability under Labor Law 240 (1). Additionally, for these same reasons, 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, Claimant's motion for summary judgment on the issue of liability under Labor Law 240 (1) is granted and the State's cross-motion is denied.


The Court will contact the attorneys for purposes of scheduling a conference to discuss a schedule for the completion of outstanding discovery, if any, and the scheduling of a damages trial.


ENTER JUDGMENT ACCORDINGLY.

September 3, 2002
Binghamton, New York

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




[1]The term "Claimant" will refer solely to Joseph Fiorelli inasmuch as the claim of Donna Fiorelli is derivative in nature.