New York State Court of Claims

New York State Court of Claims

POZNIAK v. THE STATE OF NEW YORK, #2003-015-313, Claim No. 103542, Motion No. M-66091


Court found State liable under Labor Law § 240 (i) for injuries received by worker who fell through roof opening of building at State office building complex during roof removal/replacement project.

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:
Buckley, Mendleson & Criscione, P.C.By: John J. Criscione, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Donohue, Sabo, Varley & Armstrong, P.C.Fred J. Hutchison, Esquire
Third-party defendant's attorney:

Signature date:
February 10, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion (designated as a "cross-motion") for summary judgment determining the defendant's liability pursuant to Labor Law § 240 (1) as a matter of law is granted. This claim seeks damages for personal injuries sustained by claimant on November 12, 2000 while he was engaged in roofing work on a State owned building at the Averill Harriman State Office Campus in Albany. Claimant was employed by Horizon Roofing which had been awarded a contract to remove and replace a foam bituminous roof which extended the length of the building and consisted of 10 separate bays. During the removal process it was discovered that metal decking located under the bituminous roofing had deteriorated and a change order directing Horizon to remove and replace the deteriorated metal decking was effected. On the day he was injured claimant was 20 years old and a relative newcomer to the project. He was initially assigned the task of sweeping rain water from the roof and, while so engaged, was asked to assist his co-workers in removing a piece of the metal decking which measured approximately three feet by twenty feet. According to claimant he grabbed one corner of the metal decking, lifted it and walked one or two steps before falling through the opening in the roof created by removal of the decking to the floor of the building approximately twenty feet below.

Claimant alleges that he was not provided safety devices which would have protected him from this elevation related accident and has moved for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1).

Defendant opposed the motion arguing that until the metal decking was removed there was no elevation related risk to which claimant was exposed and therefore no need to provide a safety device. Defendant further argues that claimant has not specified what, if any, safety device might have been provided under the circumstances since claimant was actually in the process of uncovering the hole at the time of his fall. Defendant further asserts that the decking had become stuck and claimant intentionally stepped into the hole in order to free the decking. Defendant also argues that the varying accounts of the manner in which the accident occurred create triable issues of fact which preclude the Court from granting claimant's motion. Defendant's arguments are unavailing and the motion must be granted.

Section 240 (1) of the Labor Law provides as follows:
§ 240. Scaffolding and other devices for use of employees

1. All 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 proper protection to a person so employed.
"In order to prevail in a Labor Law § 240 action, a plaintiff need only establish that the statute was violated and that the violation was a proximate cause of his injury" (Linney v Consistory of Bellevue Ref. Church, 115 AD2d 209, 210; Zahn v Pauker, 107 AD2d 118; Harmon v Sager, 106 AD2d 704). "Where a plaintiff meets that burden, summary judgment resolving the issue of liability in plaintiff's favor is an appropriate remedy" (Linney v Consistory of Bellevue Ref. Church, supra at p. 210).

The record in the instant case establishes a violation of Labor Law § 240 (1) as a matter of law. It is unrefuted that the defendant failed to provide a safety device to protect claimant from an accidental fall through the opening in the roof created by the removal of the metal decking. The absence of an appropriate safety device violated the statute and that violation was a substantial factor in causing the claimant's injuries (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513; see also, Wieszchowski v Skidmore Coll., 147 AD2d 822).

The defendant seeks to avoid liability by asserting that absolute liability pursuant to Labor Law § 240(1) should not attach here because it would be unreasonable to expect an owner to guard against a condition which did not exist prior to claimant's own act of removing the decking. Defendant further argues that claimant's own actions were the sole proximate cause of his accident, citing to the Appellate Division, Second Department case of Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630. That case is distinguishable on its facts, however, since in Tweedy plaintiff was provided with a safety device (a scaffold tied off to coping stones) which he untied. The Court held that under those circumstances it was for the fact finder to determine whether the plaintiff's own conduct was the sole proximate cause of his injuries.

A similar argument to that made by the defendant on this motion was rejected by the Appellate Division, Third Department in Clark v Fox Meadow Bldrs., 214 AD2d 882, on facts remarkably similar to those presented in the instant case. In Clark the plaintiff was employed by a roofing contractor to install insulation board and rubber roofing to a roof deck. The roof contained six openings to accommodate skylights which were overlaid with plywood covers. After removing a piece of plywood from one of the openings the plaintiff placed the plywood on the roof and inadvertently stepped into the opening. In reversing the trial court's denial of plaintiff's summary judgment motion the Appellate Division observed (at p. 884):
That plaintiff might have been the one who removed the plywood cover does not create a question of fact on the proximate cause issue. There can be little doubt that the statutory violation based upon the failure to provide plaintiff with any protection from the elevation-related risk created by the uncovered opening was a proximate cause of plaintiff's injuries (see, supra; Gandley v Prestige Roofing & Siding Co., 148 AD2d 666, 668, appeal dismissed 74 NY2d 792). That plaintiff's carelessness may have contributed to his fall is irrelevant (see, e.g. Bland v Manocherian, 66 NY2d 452, 460). There is no evidence in this case that plaintiff's injuries were caused exclusively by his own willful or intentional acts (cf., Tate v Clancy-Cullen Stor. Co., 171 AD2d 292, 296-297). To the contrary, the removal of the plywood cover was done during the course of the roofing work, to enable the roofers to install the insulation board and rubber roofing around the opening. Whether the cover was removed by plaintiff or one of his co-workers is, therefore, irrelevant. For the same reason, it cannot be said that removal of the plywood cover was an unforeseeable, intervening act (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 562; cf., Styer v Vita Constr., 174 AD2d 662). Plaintiffs are entitled to partial summary judgment on the issue of liability and, therefore, Supreme Court's order should be reversed.
Equally noteworthy is the Third Department's affirmance of a judgment entered upon a verdict in favor of a plaintiff under Labor Law § 240 (1) in a case where a roofing contractor's employee fell some twenty feet through a 10 foot by 6 foot rectangular opening in a roof that was made to house a vent. Although the vent opening had been previously covered it was uncovered when plaintiff backed into it while installing a tarp to protect the building from the elements (Flansburg v Merritt Meridian Constr. Corp., 191 AD2d 756). Liability under Labor Law § 240 (1) attached because plaintiff "was injured by an elevation-related risk for which no safety devices had been provided" (Flansburg, supra, 756-757; see also, Grant v Gutchess Timberlands, 214 AD2d 909 and Seguin v Massena Aluminum Recovery Co., 229 AD2d 839).

The same conclusion must be reached on the instant motion since claimant's injuries clearly resulted from the owner's failure to meet the statutory mandate to provide a safety device to protect claimant from the elevation differential at the worksite and from the special hazards of "such gravity-related accidents as falling from a height or being struck by a falling object" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501).

Finally, the instant motion is not precluded by the fact that claimant and a co-worker, Kyle Zaloga, offered slightly different accounts of how the accident happened. In fact, even where plaintiff himself offered varying accounts of an accident the Appellate Division, Third Department, has held that such "inconsistency does not warrant denial of summary judgment in plaintiff's favor" (Johnson v Packaging Corp. of Am., 274 AD2d 627, 628) where no safety devices were provided and plaintiff's injuries resulted from a 9 ½ foot fall from a roof.

Claimant's motion for partial summary judgment on the issue of liability is granted. The trial previously scheduled for February 26, 2003 on the issue of liability is cancelled as unnecessary. Absent a settlement between the parties damages shall be determined upon a trial, the date for which shall be set at a conference to be scheduled within 30 days of receipt of this decision and order.

Interlocutory judgment on the issue of liability shall be entered by the clerk forthwith.

February 10, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The court considered the following papers:
  1. Notice of motion dated November 27, 2002;
  2. Undated affirmation of John J. Criscione with exhibits;
  3. Affidavit of Brett Pozniak sworn to November 27, 2002;
  4. Affidavit of Irving Paris sworn to November 26, 2002 with exhibit;
  5. Affirmation of Fred J. Hutchison dated December 11, 2002;
  6. Undated Reply Affirmation of John J. Criscione;
  7. Affidavit of Irving Paris sworn to December 16, 2002.