Reply Affirmation of Michael P. Kenny, Esq., with Exhibits (including the
Affidavit of Richard Duncan [Exhibit B] and Affidavit of James Urtz [Exhibit C])
Claimant's Reply Memorandum (M-67188) 8
Notice of Motion, Affidavit of John J. Marchese, Esq., with Exhibits
Memorandum of Law (M-67438) 11
Claimant commenced this action to recover for injuries sustained by him in a
fall from scaffolding while he was working on a project for the construction of
a New York State prison in Romulus, New York, on September 24, 1999.
According to the papers submitted herein, the State had contracted with
Northland Associates, Inc. for this construction project. Northland Associates,
Inc. had subcontracted mortar and masonry work to Joseph Baldwin Construction
Co., Inc., for whom claimant was an employee. Claimant had worked for Joseph
Baldwin Construction Co., Inc. for approximately nine weeks, but had worked as a
construction laborer since approximately 1972.
On September 24, 1999, claimant was climbing the outside cross braces of a
scaffold, in order to deliver materials to the masons who were constructing the
walls. As he was climbing the scaffold, claimant stated that it began to shift,
which caused him to fall and hit the ground, causing his injuries. He stated
that he was approximately six feet off the ground at the time that he fell.
James Urtz, a co-worker of claimant, was working with claimant on the day of
the accident. As set forth in his affidavit (see Exhibit C to Item 7), he had
climbed the scaffold, also using the cross braces, immediately before claimant.
He stated that he also felt the scaffold move when he was climbing it, but that
he did not fall.
Mr. Urtz stated that the scaffolding at this project was several stories tall
and extended at least 50 to 60 feet in width, and that it was comprised of
multiple smaller scaffolds. He further stated that the scaffolding was
temporary, in that it would be moved when the employees were working on
different areas of the project.
He further stated that there were no ladders on the end of the scaffold, nor
were there any ladders on the lowest portion of the scaffold. The only way to
access the upper levels of the scaffolding, according to Mr. Urtz, was to climb
the cross braces. He added that prior to the date of this accident, there had
been ladders attached to the scaffold, but they had been moved to other
locations on the job site prior to the accident.
Finally, Mr. Urtz also stated that certain parts which were used to secure the
footings of the scaffold, and to secure the scaffold to the wall, had been
previously removed by other workers for use at other locations on the job site.
These statements made under oath by Mr. Urtz were corroborated by claimant (see
claimant's affidavit [Item 3] and an additional affidavit by claimant [Exhibit B
to Item 7]).
Labor Law § 240 (1) provides, in pertinent part, that
"[a]ll contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the work, in
the erection, demolition, repairing, altering, painting, cleaning or pointing of
a building or structure shall 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 protection to a person
It is well settled that the purpose behind § 240(1) is to place ultimate
responsibility for safety at construction sites on the owner, and not the
worker. In order to prevail on a cause of action based upon a violation of
§ 240(1), a claimant must establish that there was a violation of the
statute, and that the violation was the proximate cause of the injury (see,
Zimmer v Chemung County Performing
, 65 NY2d 513). The duty imposed is non-delegable and the negligence, if any,
of the injured worker is of no consequence (see, Zimmer, supra at
It has been stated that the statute should be construed as liberally as
possible to accomplish its purpose of imposing absolute liability for a breach
which proximately causes an injury (see, Misseritti v Mark IV Construction
Co., Inc., 86 NY2d 487). An owner may escape liability only in situations
where the worker's conduct is the sole proximate cause of the accident (see,
Weininger v Hagedorn & Co., 91 NY2d 958).
In this matter, there can be no dispute that claimant was involved in the type
of work intended to be covered by Labor Law § 240(1), and that he suffered
injuries as a result of an elevation-related accident. Claimant therefore
asserts that liability has been established due to the failure of defendant to
provide appropriate safety devices to prevent his fall. Defendant, however,
contends that material facts of question exist which preclude summary judgment.
Specifically, defendant asserts that questions have been raised as to whether
claimant was provided with proper protection by the scaffold, and whether
instead claimant's actions were the sole proximate cause of his accident, rather
than any failure of the safety equipment which was provided.
In support of its position, defendant has submitted an affidavit by Robert
Farfaglia, a supervisor with Joseph Baldwin Construction Co., Inc. (see, Exhibit
E to Item 5)
. In this affidavit, Mr.
Farfaglia stated that he observed the scaffold shortly after claimant's
accident, and that the scaffold from which claimant fell "had a ladder frame
incorporated therein". Mr. Farfaglia also stated that claimant had been
instructed to climb this ladder frame, and not to climb on the cross braces of
the scaffold. Finally, Mr. Farfaglia also stated that weekly safety meetings
were held at the construction site by his employer, and that claimant failed to
follow proper instructions for climbing the scaffold, which would have been
given at these meetings.
Based on this affidavit, defendant contends that a question of material fact
has been raised as to whether a ladder was available for use by claimant, and if
so, whether such ladder provided adequate protection. Defendant argues that
such issue also precludes summary judgment, since claimant's failure to use the
ladder, which was built into the scaffold, can be viewed as the sole proximate
cause of his accident.
As previously mentioned herein, claimant, however, submitted his own affidavit,
together with the affidavit of his co-worker, James Urtz, both of which directly
contradict the affidavit of Mr. Farfaglia. The affidavit by Mr. Urtz
affirmatively states that there was no ladder built into the scaffold available
for claimant's use in the vicinity in his work area, and that there were no
ladders whatsoever on the lowest portion of the scaffold, leaving claimant no
alternative to access the upper levels of the scaffold except by climbing the
cross braces. Furthermore, Mr. Urtz states that on the day of the accident, not
only did he and claimant climb the scaffold by the cross braces, but that all
workers, including State inspectors, climbed the scaffold in that manner, since
there were no other ladders available.
The Court finds that the vague and ambiguous affidavit of Mr. Farfaglia,
submitted by defendant, is insufficient to raise a material question of fact as
to whether a ladder was suitably placed for claimant's use on the day of the
accident. The Court finds that claimant was not supplied with a ladder which
would have provided him access to the upper levels of the scaffold, and based
upon this failure to provide him with an appropriate safety device, defendant
must be held absolutely liable under § 240(1). The availability of a
safety device, such as a ladder incorporated into the scaffolding frame, located
somewhere on the project is insufficient to relieve defendant from liability,
without proof that such safety devices were readily available for use (see,
Howe v Syracuse University, 306 AD2d 891). In this case, the fact that
all workers, including State inspectors, utilized cross braces to climb the
scaffold at the site of the accident rebuts any inference that an incorporated
ladder frame was available for claimant's use at this location.
Furthermore, due to the failure to provide claimant with an adequate safety
device, there is no evidence whatsoever indicating that claimant's actions can
be considered the sole proximate cause of this accident, and any negligence on
his part will therefore not relieve the defendant of its absolute liability
(see, Rocovich v Consolidated Edison Co., 78 NY2d 509). Furthermore,
there was no evidence presented that claimant specifically refused to use safety
equipment which was provided (see, Gordon v Eastern Railway Supply, Inc,
82 NY2d 555). Warnings or instructions, even if provided to claimant in safety
meetings, are insufficient to establish a recalcitrant worker defense (Stolt
v General Foods Corp., 81 NY2d 918; Gordon v Eastern Railway Supply,
Accordingly, since the Court has found that adequate safety devices were not
made available to claimant, and since it cannot be found that claimant's actions
were the sole proximate cause of his injuries, he is entitled to the protection
of Labor Law § 240(1) and is entitled to summary judgment on the issue of
liability. Based on this finding, it is not necessary for the Court to consider
claimant's alternative requests for relief under Labor Law § 200 and §
As previously noted, defendant, in Motion No. M-67438, seeks to vacate
claimant's note of issue and certificate of readiness. Defendant argues that
the note of issue makes reference that defendant has waived a physical
examination of claimant, when it in fact has not done so. On March 19,
2003, this Court had issued an amended scheduling order which specifically
permitted defendant to conduct a physical examination of claimant within 90 days
after the date on a final decision on liability, while also requiring the
service and filing of a note of issue and certificate of readiness by September
15, 2003. In other words, the Court anticipated that defendant might not
conduct a physical examination of claimant until the issue of liability had been
resolved, and is well aware that such examination has not been waived, despite
the service and filing of the note of issue. In any event, since liability has
now been determined in the accompanying summary judgment motion, the note of
issue has been effectively rendered moot, as well as defendant's motion to
vacate said note of issue. As previously ordered, defendant has 90 days from
the date of filing of this decision and order to conduct its physical
examination of claimant, who shall make himself available for such examination.
Accordingly, it is
ORDERED, that Motion No. M-67188 is hereby GRANTED; and it is further
ORDERED, that Motion No. M-67438 is hereby DENIED; and it is further
ORDERED, that the Clerk of the Court is directed to enter an interlocutory
judgment on the issue of liability in favor of the claimant in accordance with
this decision and order. The Court will set this matter down for a trial
limited solely to the issue of damages as soon as reasonably practicable,
following a physical examination of the claimant by defendant.