New York State Court of Claims

New York State Court of Claims

BEARD v. THE STATE OF NEW YORK, #2004-009-60, Claim No. 108212, Motion Nos. M-68175, CM-68329


Claimants' motion for summary judgment on liability based upon Labor Law § 240(1) was granted.

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: James E. Maslyn, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Smith, Sovik, Kendrick & Sugnet, P.C.
Steven Ward Williams, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, claimants seek damages for personal injuries suffered by Robert Beard[1] based upon alleged violations of Labor Law § 200, § 240(1) and § 241(6). Defendant is seeking an order of summary judgment (M-68175) dismissing the causes of action based upon Labor Law § 240(1) and § 241(6). Claimants have responded with a cross-motion (CM-68329), not only in opposition to defendant's motion, but also seeking an order of summary judgment on the Labor Law § 240(1) cause of action.

In addition to oral argument, the following papers were considered by the Court in connection with both the motion and cross-motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Memorandum of Law 3

Notice of Cross-Motion, Affidavit, Memorandum of Law 4,5,6

Reply Affidavit 7

Although the parties disagree as to the applicability of Labor Law § 240(1), the pertinent facts surrounding this accident are not in dispute. On June 5, 2002 claimant was employed as a heavy equipment operator by Economy Paving, which had contracted for the demolition and reconstruction of a two lane bridge located on New York State Route 13 and East River Crossing in Cortland County. On this day, claimant was operating a "Cruise Air" in order to demolish the bridge. The Cruise Air is a large backhoe-type piece of equipment, approximately 30 feet in length, containing a "hoe ram" on one end. The hoe ram is a jackhamer-like device which was being used at the time to punch six inch holes in the bridge. The bridge would thus be weakened, which would allow sections of the bridge to be taken out by use of an "excavator". Claimant had been instructed to tear out half of the bridge by this process, and then he was to proceed to the other side of the bridge and tear out the remaining half, again utilizing the Cruise Air and the excavator.

At the time of the accident, the Cruise Air was situated partially on a concrete approach ramp leading to the bridge, while the portion of the Cruise Air containing the hoe ram device was loaded on the bridge itself. The Cruise Air was stationary, and Mr. Beard was operating the hoe ram from a cab situated over the back wheels of the Cruise Air (the portion of the Cruise Air which was on the bridge). Claimant was wearing a seatbelt and hard hat as he was performing this work. While operating the hoe ram to punch holes in the deck of the bridge, however, the bridge collapsed, causing the rear portion of the Cruise Air to fall approximately 15 to 20 feet to the creek bed below the bridge. Due to the substantial length of the Cruise Air, the forward part, which had been located on the concrete approach to the bridge, did not fall to the creek bed, but instead actually tipped up into the air when the rear portion of the Cruise Air reached the creek bed below. Although claimant remained in the cab, he suffered injuries to his right arm and shoulder during this accident.

Defendant seeks dismissal of this claim, contending that the protections provided by Labor Law § 240(1) are not applicable to these facts. Furthermore, defendant contends that claimant's Labor Law §241(6) cause of action should also be dismissed, since claimant had failed to include a 241(6) cause of action in his notice of intention to file a claim, and thereafter failed to make reference to any specific rule or regulation in support of his § 241(6) cause of action in his filed claim.

In addressing that aspect of defendant's motion pertaining to the § 241(6) cause of action first, the Court must first emphasize the significant legal distinctions between a claim and a notice of intention to file a claim. First of all, a notice of intention is not a pleading. The purpose of a notice of intention is to place the State on notice that a claim may be asserted against it, thereby providing the defendant with an opportunity to promptly investigate the underlying circumstances of such potential claim. Additionally, a notice of intention provides a potential claimant with an extension of time in which to serve and file a claim.

Accordingly, it is not necessary for a notice of intention to set forth a valid cause of action or legal theory of recovery, or even specify the items of damages or injuries sustained (Epps v State of New York, 199 AD2d 914; Sega v State of New York, 246 AD2d 753 lv to appeal denied 92 NY2d 805).

In this particular matter, the notice of intention served by claimant contained sufficient details regarding the underlying accident to provide the State with an opportunity to promptly and thoroughly investigate the circumstances underlying the claim. The fact that claimants did not include a cause of action with specific reference to Labor Law § 241(6) is therefore not prejudicial to the State, and is not fatal.

The claim, on the other hand, is the pleading which initiates the action in the Court of Claims, fulfilling the role of both the summons and complaint in the Supreme Court practice. Although they subsequently alleged a cause of action under Labor Law § 241(6) in their filed claim, however, claimants failed to cite or reference any specific rule or regulation alleged to have been violated. Notwithstanding this omission, as long as a claimant has set forth the predicate facts in the claim, a failure to allege the violation of a specific and concrete Code provision is not considered fatal, since such information can be provided either through a bill of particulars or by an amendment to the pleadings which, absent surprise or prejudice, is to be freely given (Kelleir v Supreme Industrial Park, LLC, 293 AD2d 513; Adams v Santa Fe Construction Corp., 288 AD2d 11). Accordingly, the aspect of defendant's motion seeking to dismiss the Labor Law § 241(6) cause of action must be denied.

With respect to the cause of action based upon Labor Law § 240(1), both parties seek an order granting them summary judgment.

The essential issue for resolution herein is whether Labor Law § 240(1) should be found applicable to the facts of this claim. Labor Law § 240(1) imposes a nondelegable duty upon an owner and general contractor to provide adequate safety devices to protect workers from the danger of falling from an elevated work site. The purpose of the law is to protect workers and place ultimate responsibility for work site safety on the owner and general contractor instead of the worker (see Ross v Curtis-Palmer Hydro-Elec.Co. 81 NY2d 494, 500; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). The statute is to be construed liberally in order to accomplish its purpose of protecting the worker (Gordon v Eastern Railway Supply, 82 NY2d 555, 559).

It is defendant's contention that claimant was not working at an elevated work site, and that the provisions of § 240 are therefore not applicable. Defendant argues that claimant was working at ground level, since the machinery he was operating was situated at roadway level (i.e., the ramp and the concrete bridge), and that a fall from ground level does not constitute a fall from an elevated height for purposes of invoking the protections of Labor Law § 240 (see Radka v Miller Brewing Company, Inc., 182 AD2d 1111).

Defendant has therefore characterized this accident as a typical construction site accident, and that the project did not involve any elevation related hazard. Defendant argues that this accident is analogous to those involving workers who have slipped or fallen into a trench from ground level (see Caradori v Med Inn Centers of America, LLC, 5 AD3d 1063).

While this analysis might be correct if claimant was actually working on a roadway reconstruction or renovation project, in this matter claimant was instead involved in the demolition of a bridge situated 15 to 20 feet over a creek bed. At the time of the accident, claimant, in the Cruise Air cab, was on the bridge and attempting to demolish it when it collapsed, causing claimant to fall 15 to 20 feet to the creek bed below.[2]

In this Court's opinion, claimant was working at an elevated height, and suffered his injuries in a gravity-related accident from this height, specifically the type of hazard that Labor Law § 240(1) was designed to protect.

Since defendant has contended that the protections provided by§ 240(1) were inapplicable to the instant claim, defendant has raised no issues of fact as to whether adequate safety devices were available. From the undisputed facts, it appears that while claimant was provided with a safety belt (which he claims to have been wearing at the time of the accident), claimant was provided with no devices whatsoever which would have prevented him from falling into the creek bed when the bridge collapsed.

Accordingly, based upon the Court's finding that claimant did suffer his injuries in an elevation related accident, to which the protections provided by Labor Law § 240(1) are applicable, and additionally finding that claimant was not provided with adequate safety devices to prevent his fall, the Court finds that summary judgment on the issue of liability must be granted to claimant on his § 240(1) claim.

Accordingly, it is
ORDERED, that Motion No. M-68175 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-68329 is hereby GRANTED; and it is further

ORDERED, that the Chief Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in favor of the claimants 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.

September 30, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Since the claim of Cynthia Beard is derivative in nature, all references to claimant, unless otherwise specified, are to Robert Beard.
[2] Defendant's attorney argues that claimant did not fall during this accident, but simply that the Cruise Air tipped or tilted, since the front portion of the machinery did not end up in the creek bed, but remained on the ground adjacent to the bridge. The Court views this particular dispute as a matter of semantics. Whether viewed as "tipping", "tilting" or "falling", claimant suffered his injuries when the rear portion of the Cruise Air (in which he was working) experienced a rapid drop in elevation of approximately 15 to 20 feet from the bridge surface to the creek bed below.