New York State Court of Claims

New York State Court of Claims

KYRIAZIS v. THE STATE OF NEW YORK, #2003-029-279, Claim No. 103598, Motion No. M-66212


Summary judgment by claimant as to liability on Labor Law § 240 (1). Court finds claimant established prima facie entitlement and failure by defendant to rebut the showing. Partial summary judgment granted as to defendant, NYSTA.

Case Information

GEORGE KYRIAZIS and VASILA KYRIAZIS The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Brand, Brand & BurkeBy: Brett J. Nomberg, Esq.
Defendant's attorney:
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLPBy: Jeffrey K. Van Etten, Esq.
Third-party defendant's attorney:

Signature date:
May 1, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] moves for partial summary judgment pursuant to CPLR 3212 seeking an order determining the liability of the defendant, New York State Thruway Authority (hereinafter NYSTA) pursuant to Labor Law § 240 (1).

Claimant seeks damages for personal injuries he sustained at about 4:30 a.m. on October 11, 2000 at the Pine Hill Road bridge/overpass on the New York State Thruway (I-87) near Exit 16 in the Town of Woodbury, Orange County. At that time, claimant was employed by Delphi Painting and Decorating, Inc. (hereinafter Delphi) as a bridge painter and cleaner. NYSTA had entered into a contract with Delphi to clean and paint five bridges in the area. According to the affidavit of claimant's co-worker, Julio Silva, he witnessed claimant walk up a 15 to 20 foot ladder which was leaning on the Pine Hill Road overpass. While claimant was standing near the top of the ladder pulling a tarp off the overpass, the ladder shifted causing the ladder and claimant to fall to the ground. No one was holding or supporting the ladder and no safety devices were being used (see Exhibit L attached to Motion). Claimant, in his affidavit in support of the motion, asserts that the ladder upon which he was working began to slip, causing him to fall off the ladder as it collapsed (see Exhibit N attached to Motion). Following the fall, claimant was transported by ambulance to the hospital for treatment of injuries to his neck, back and head.

The initial burden on a motion for summary judgment rests with the moving party and requires a demonstration that the movant is entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Here, claimant has alleged that he was injured in a fall from an elevated work site which was proximately caused by NYSTA's breach of its nondelegable statutory duty as owner of a construction site to "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" (Labor Law § 240 [1]). The Court of Appeals has repeatedly found that owners may be held absolutely liable for any breach of that statutory duty which proximately causes injury to a worker so engaged regardless of whether the owners or contractors actually exercised supervision or control over the work (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-501).

Claimant's proof offered on this motion demonstrates that the accident scene was a construction site, that as a painter/cleaner claimant was engaged in one of the enumerated activities subject to the protections afforded by Labor Law § 240 (1) (Gordon v Eastern Ry. Supply, 82 NY2d 555, supra) and that the highway bridge/overpass owned by the defendant qualifies as a structure (see, Reed v State of New York, 249 AD2d 719). He further demonstrated that the work he was hired to perform was to take place at an elevated location (a ladder suspended underneath the bridge's supporting framework) and that he was not provided with safety devices or anyone to hold the ladder (see, Wasilewski v Museum of Modern Art, 260 AD2d 271; Whalen v F.J. Sciame Constr. Co., Inc., 198 AD2d 501). Once claimant demonstrates a prima facie case of liability based upon the slipping or collapse of a ladder, the burden shifts to defendant to submit evidence sufficient to raise a triable issue of fact (Klein v City of New York, 89 NY2d 833, affg 222 AD2d 351).

In opposition to the motion, the defendant has submitted only the affirmation of its attorney who does not have direct knowledge of the facts.[2] He asserts that it is unclear whether claimant fell first, whether the ladder was improperly secured or whether the ladder slipped (see Van Etten Affirmation in Opposition, Paragraph 20).

Based upon this record, the Court finds that the defendant has failed to submit evidence in admissible form to rebut claimant's prima facie showing (see, Bryan v City of New York, 206 AD2d 448). Nothing in the record indicates that the ladder was equipped with safety devices to break claimant's fall, that claimant was provided with safety devices to help prevent the fall or that defendant provided someone to secure the ladder (see, Devlin v Sony Corp. of America, 237 AD2d 201; see also, Guillory v Nautilus Real Estate, 208 AD2d 336, lv dismissed, lv denied, 86 NY2d 881; Whalen v F.J. Sciame Constr. Co., Inc., 198 AD2d 501, supra). The precise manner in which the fall occurred is immaterial, there being no question that claimant's injuries are at least partially attributable to defendant's failure to provide proper protection (Laquidara v HRH Constr. Corp., 283 AD2d 169).

Defendant also attempted to avoid liability by arguing that claimant was a "recalcitrant worker" but there is nothing in this record to support this argument. The appellate courts have made it exceedingly clear that in order to benefit from the recalcitrant worker defense, a defendant must demonstrate that a claimant "deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor" (Salotti v Wellco, Inc., 273 AD2d 862; Kaffke v New York State Elec. & Gas Corp., 257 AD2d 840). Here, defendant offered no proof of claimant's refusal to use any available safety device after being ordered to do so. Without such proof, the recalcitrant worker doctrine is inapplicable (Kouros v State of New York, 288 AD2d 566; Reed v State of New York, 249 AD2d 719, supra).

Based upon the foregoing, claimant's motion for partial summary judgment as to the issue of liability under Labor Law § 240 (1) as to defendant, NYSTA is granted.

The following papers were read on claimant's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) as to the defendant, NYSTA:

Papers Numbered

Notice of Motion, Attorney's Affirmation
and Exhibits Attached 1

Affirmation in Opposition 2

Reply Affirmation and Exhibits Attached 3

May 1, 2003
White Plains, New York

Judge of the Court of Claims

[1] As the claim of Vasila Kyriazis is derivative in nature, all references to claimant are to George Kyriazis unless otherwise indicated.
[2] The Court notes that counsel does refer to several exhibits attached to claimants' motion.