New York State Court of Claims

New York State Court of Claims

BOUNDS v. THE STATE OF NEW YORK, #2004-009-18, Claim No. 106890, Motion Nos. M-67413, CM-67661


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:
BY: Michael G. Bersani, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-67413) seeking summary judgment on the issue of liability pursuant to Labor Law § 240(1). In response, defendant has submitted a cross-motion (CM-67661, not only in opposition to the relief sought by claimant, but also seeking an order of summary judgment dismissing the claim. The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit of Michael G. Bersani, Esq., with Exhibits (M-67413) 1,2

Memorandum of Law (Claimant) 3

Notice of Cross-Motion, Affirmation of Patricia M. Bordonaro, Esq., with Exhibits

(CM-67661) 4,5

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 his "employment".

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 1129).

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 claimant.

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 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, if desired, by defendant.

March 30, 2004
Syracuse, New York

Judge of the Court of Claims