Notice of Cross-Motion, Affirmation of Patricia M. Bordonaro, Esq., with
Memorandum of Law (Defendant) 6
Reply Affidavit (Claimant) 7
Reply Memorandum of Law (Claimant) 8
Reply Affirmation, with Exhibit (Defendant) 9
Sur-Reply Affidavit (Claimant) 10
Claimant commenced this action to recover for personal injuries sustained by
him when he fell while working on scaffolding in the mechanic's garage at Cayuga
Lake State Park on February 6, 2001.
According to the papers submitted herein, the following facts, as they pertain
to this accident, are not in dispute. Prior to the date of the incident,
claimant had agreed to participate in Seneca County's Work Experience Program,
also know as the Seneca County Workforce, in order to qualify for public
assistance benefits. Workers in this program, although they do not receive
wages, perform services at institutions such as government agencies or
departments, school districts, or not-for-profit agencies.
On the day in question, claimant and a coworker, Bill Kuhlmann, were driven to
Cayuga Lake State Park by their supervisor at the Seneca County Workforce, John
Cafaro, where they were assigned to work that day. It was the first time that
claimant had been assigned to work at the park while participating in this
program. At approximately 10:00 a.m., claimant and Mr. Kuhlmann were instructed
by the park supervisor, John Dawson, to clean the interior ceiling of the
mechanic's garage in preparation for painting. Claimant and Mr. Kuhlmann were
told to assemble and use a scaffold to enable them to reach the ceiling.
Claimant described the scaffold as having two aluminum planks placed
side-by-side across the piping, approximately eight feet from ground level. He
estimated that each plank was approximately three feet wide and about eight feet
in length. Mr. Kuhlmann agreed that the scaffolding had two planks laid across
the frame, but estimated that each plank was approximately 18 inches wide,
rather than the three feet width as described by claimant. In any event, both
claimant and Mr. Kuhlmann stated that even with two planks placed on the
framework, there was still enough room so that another plank of the same width
as the others would have fit onto the scaffolding.
After assembling this scaffold and rolling it into the proper location,
claimant and Mr. Kuhlmann went on break with State employees who were working
that day. After the break ended, Mr. Kuhlmann went to the bathroom, while
claimant walked back to the scaffolding. By the time that Mr. Kuhlmann came out
of the bathroom, claimant was sitting on the floor, holding his arm and
shoulder, and he told Mr. Kuhlmann that he had fallen from the scaffold. Mr.
Kuhlmann, therefore, did not witness the accident.
Claimant, in his deposition testimony, testified that he climbed up the
scaffolding to start cleaning the ceiling immediately after break ended. He
stated that as soon as he climbed up to the planks, and while stepping from one
plank to the other, they slid apart, and he slipped through the gap between the
two planks and got caught by his right arm between the planks. Because he was
caught between the planks, he did not fall to the ground, but did sustain an
injury to his right arm and shoulder. There is no indication that the scaffold
framework itself moved or fell at the time of this accident.
Although he also did not actually see claimant fall, David Dempsey, an employee
at Cayuga Lake State Park, was in the maintenance garage at this time. When he
heard a noise, he turned around and saw claimant hanging between the two planks
on the scaffold, which were now spread apart.
Based on the undisputed facts, as well as his description of the unwitnessed
accident, claimant now seeks an order granting him summary judgment on the issue
of liability, contending that he was injured in an elevation-related accident
for which the State should be found liable under Labor Law § 240(1). On
the other hand, defendant argues that the protections provided by
§ 240(1) are not available to claimant in this factual context, and
therefore the claim should be dismissed. Alternatively, defendant contends that
even if § 240(1) is found applicable to the facts of this claim, questions
of fact remain which should preclude the Court from granting summary judgment.
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 proper protection to a
person so employed."
Defendant, however, contends that claimant is not entitled to these
protections, because he was not an employee of either Seneca County or the State
and therefore should be considered a volunteer. It is well settled that the
protections provided by § 240(1) do not apply to volunteers who are injured
while offering their services gratuitously (Whelen v Warwick Val. Civic &
Social Club, 47 NY2d 970).
In this case, however, even though claimant was not an employee of Seneca
County, he certainly was not volunteering his services either to the county or
the State on this project. In order to qualify for public assistance, claimant
was required to perform work for Seneca County. On the day in question,
claimant had been assigned to Cayuga Lake State Park and had been directed to
perform the cleaning job when he was injured. Even though there was no formal
employment relationship between claimant and Seneca County, claimant must be
considered, for purposes of this discussion, the functional equivalent of an
employee. On this date, clearly, he was not offering his services gratuitously,
but was only doing what he had been directed to do as a participant in the
Seneca County Workforce in order to qualify for public assistance.
Further, it is undisputed that following his injury, claimant did apply for and
receive Workers' Compensation benefits, a further indication that he had not
simply volunteered his services, but instead was injured during the course of
Along these same lines, defendant also argues that § 240(1) does not apply
herein because there was no formal or written contract between the State and
Seneca County for the work to be performed. However, even though there was no
formal agreement between the county and the State, and no indication that the
State was obligated to pay for the services provided, claimant should not be
denied the protections provided by § 240(1) solely for this reason. As
stated above, claimant had reported for work on the day of the accident as
required by his agreement to participate in the Seneca County Workforce, and had
been directed by a supervisor to perform the cleaning job as part of this
participation. Under no stretch of the imagination can he be considered to be a
"volunteer" simply because there was no formal agreement between the State and
the county for these services (see, Daniello v Holy Name Church, 286 AD2d
268; Boncore v Temple Beth Zion, 299 AD2d 953).
Additionally, defendant contends that if claimant is not found to be a
"volunteer", he must then be considered a "special employee" of the State, and
as such, limited to benefits provided by the Workers' Compensation Law. In
order to be considered a "special employee", the general employer must have
relinquished all direction and control (Sweet v Board of Education, 290
NY 73). Furthermore, there is a presumption that general employment continues,
unless it is established that the special employer has assumed all direction and
control over the employee (Goss v State University Const. Fund, 261 AD2d
860). In this case, and on the day in question, claimant reported for work to
his supervisor at the Seneca County Workforce, John Cafaro. Mr. Cafaro made the
decision as to where claimant would be working that day, and in fact drove
claimant to Cayuga Lake State Park that morning. Even though Mr. Cafaro was not
present at the job site at the time of the accident, there is no indication
whatsoever that he had relinquished his supervisory control. The fact that
claimant was injured while working at the State Park, while his supervisor was
not present, is insufficient in and of itself to overcome the presumption of
general employment which would enable this Court to find a "special employee"
relationship with the State.
Based on the foregoing, therefore, this Court finds that claimant, as the
functional equivalent of an employee of Seneca County, was neither a volunteer,
nor a "special employee" of the State, and is therefore within the class of
persons entitled to the protections provided by § 240(1).
Additionally, defendant further contends that claimant is not entitled to the
protections provided by § 240(1), since he was not engaged in any of the
enumerated activities set forth in that section. Specifically, defendant argues
that § 240(1) is inapplicable since claimant was engaged in what defendant
describes as routine maintenance or cleaning, and not in any work affecting the
structural integrity of the building (see, Williams v Perkins Rests., 245
AD2d 1128; Brown v Christopher St. Owners Corp., 87 NY2d 938). These
cases specifically hold that routine cleaning, performed as part of ordinary
maintenance on a regular basis, does not qualify as one of the enumerated
activities for which Labor Law § 240(1) provides protection.
In this particular matter, however, there is no evidence to suggest that the
activity in which claimant was involved at the time of his injury was considered
routine cleaning or maintenance. Deposition testimony of both claimant and his
coworker, Mr. Kuhlmann, as well as the deposition testimony of John Dawson, all
confirm that claimant and his coworker were specifically instructed to clean the
ceiling in preparation for a painting project of the entire interior of the
garage to be done by the State's employees. Such cleaning, therefore, must be
viewed as incidental and necessary to the painting project, an activity clearly
within the ambit of protection provided by § 240(1) (see, Van Buskirk v
State of New York, 303 AD2d 970; Nowak v Kiefer, 256 AD2d
Accordingly, the Court finds that claimant was involved in one of the
specifically enumerated activities under § 240(1), and is therefore
entitled to the protections provided therein. Therefore, since the Court has
found that § 240(1) of the Labor Law is applicable, in order to succeed
with this motion, claimant must establish that the statute was violated, and
that such violation was a proximate cause of his injuries (see, Zimmer v
Chemung County Performing Arts, 65 NY2d 513).
Initially, even though claimant did not fall to the floor, but was injured when
he was caught in the scaffolding, the Court notes that this fact alone does not
preclude claimant from proceeding under Labor Law § 240(1) (see, Adams v
North-Star Const. Co. Inc, 249 AD2d 1001).
In this matter there is no question that a safety device (the scaffold) was
provided for the purpose of protecting claimant from an elevation-related risk.
In a recent decision, the Court of Appeals has held that a violation of §
240(1) is not established merely by a showing that a worker has fallen from a
provided safety device such as a scaffold or ladder (Blake v Neighborhood
Housing Services of New York City, Inc., 1 NY3d 280). Therefore, since
claimant was unquestionably provided with an elevation-related safety device in
this claim, the issue is whether such device provided proper protection within
the meaning of Labor Law § 240(1). In other words, since a safety device
was provided, claimant must now establish that it was the failure of such safety
device, and not his own actions, which caused his fall, since there is no
liability under § 240(1) if the worker's actions are the sole proximate
cause of the accident (Blake v Neighborhood Housing Services of New York
City, Inc., supra).
In situations, as here, where a safety device was provided, the issue of
whether such device provided proper protection is ordinarily a question of fact
(see, Franklin v Dormitory Authority of State of New York, 291 AD2d 854).
In this case, although the accident was unwitnessed, claimant, in his deposition
testimony, testified that the planks of the scaffold slid apart as he stepped
from one plank to the other, causing him to fall between the two planks.
Furthermore, in his deposition testimony Mr. Kuhlmann stated that prior to the
accident, the two planks located on the scaffolding had been placed next to each
other, but that when he observed the scaffolding immediately after claimant's
accident, there was a gap between the two planks. Such testimony is consistent
with claimant's description of the accident that one of the planks slid out from
under him when he stepped onto it. Based on the foregoing, claimant, therefore,
has met his initial burden and set forth a prima facie failure of the
safety device. The burden therefore shifts to the defendant to raise a question
of fact, which must be based upon "a plausible view of the evidence" that there
was no statutory violation, and that claimant's actions were the sole cause of
the accident (Blake v Neighborhood Housing Services of New York City,
Inc., supra, at fn 8).
In this case, defendant has failed to raise any material question of fact in
response to claimant's description of the accident. At best, defendant has
speculated that claimant might have moved the planks himself, thereby causing
the accident. Such speculation, however, is not supported by any evidence, and
is simply not plausible when considered against the description of the accident
provided by claimant and the other workers. In sum, defendant has made no
showing to even remotely suggest that claimant was the sole proximate cause of
this accident sufficient to overcome the prima facie showing made by
Accordingly, based on the foregoing, it is
ORDERED, that Motion No. M-67413 is hereby GRANTED; and it is further
ORDERED, that Cross-Motion No. CM-67661 is hereby DENIED; and it is
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, if desired, by defendant.