New York State Court of Claims

New York State Court of Claims

GONCALVES v. THE STATE OF NEW YORK, #2003-028-548, Claim No. 106042, Motion No. M-66581


Synopsis


Case Information

UID:
2003-028-548
Claimant(s):
CARLOS GONCALVES and ORLANDA GONCALVES
Claimant short name:
GONCALVES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106042
Motion number(s):
M-66581
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
SAMUEL & WEININGERBY: Philip R. Papa, Esq.
Defendant's attorney:
SMITH MAZURE DIRECTOR WILKINS YOUNG YAGERMAN & TARALLO, P.C.BY: Robert P. Siegel, Esq.
Third-party defendant's attorney:

Signature date:
June 12, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has read and considered the following papers in reaching its decision on Claimant's Motion for Partial Summary Judgment:

(1) Notice of Motion for Partial Summary Judgment and Supporting Affirmation of Philip R. Papa, Esq. (Papa Affirmation) with annexed Exhibits "A - H", filed March 24, 2003;

(2) Affirmation in Opposition of Robert P. Siegel, Esq. (Siegel Affirmation), filed April 14, 2003,


(3) Reply Affirmation.

On September 4, 2001, the Claimant, Carlos Goncalves,[1] was working at the "Storage Site K Ramp" below the westbound Cross Bronx exit ramp, Bruckner Expressway, adjacent to the northbound Hutchinson River Parkway. At approximately 10:30 a.m., the Claimant was assisting in the stacking of jersey barriers. As he was standing on top of a pile of barriers, approximately 25-30 feet above the ground, he was struck by a barrier clamp attached to the cable of a crane that had been hoisting the barrier into place. As a result, he was knocked to the ground suffering various injuries.

The Claimant contends that the Defendant, as the owner of the site, is responsible pursuant to Labor Law §240(1). The Defendant contends that the Claimant has failed as a matter of law to sustain his burden of proof on the issue of proximate cause.

Labor Law §240(1) provides in pertinent part:
All contractors and owners and their agents ... 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 general, a worker injured by a fall from an elevated work site must prove that the absence of or defect in a safety device was the proximate cause of the injuries, Zimmer v Chemung County Performing Arts, 65 NY2d 513. Where, however, there is no device provided and there is no reasonable conclusion other than that the absence of the safety device was the proximate cause of the accident, then summary judgment will lie (Zimmer v Chemung County Performing Arts, supra at 523).

The Claimant herein has stated, without contradiction, that although safety harnesses were available, they were not used because there was "[n]owhere to hook up to" (Exhibit "B" annexed to Notice of Motion, p 68). Under such circumstances, liability has been found (see Shawn v State of New York, 231 AD2d 943, 942; DiMuro v Town of Babylon, 210 AD2d 373, 374; Murray v Niagara Frontier Transportation Authority, 199 AD2d 984, 985; Desrosiers v Barry, Bette and Led Duke, 189 AD2d 947, 948). The mere availability of a safety device will not provide a shield from absolute liability, where additional precautions, devices or measures are required (Sulem v B.T.R. East Greenbush, Inc. 187 AD2d 816). [2]

The Defendant has failed to submit any proof that the accident did not happen in the manner described by the Claimant; nor has it raised any issue of credibility. Accordingly, the Court finds the Claimant has established as a matter of law a violation of Labor Law §240(1) and, therefore, the motion for partial summary judgment is granted. A trial on the issue of damages shall be scheduled forthwith.



June 12, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] The claim of Orlanda Goncalves is derivative in nature and all references to the Claimant refers to Carlos Goncalves.
[2] The cases cited by defendant either raised issues of credibility concerning the manner in which the accident occurred or created an issue of fact concerning the efficacy of the device provided – that is not the case here.