New York State Court of Claims

New York State Court of Claims

SUWAREH v. THE STATE OF NEW YORK, #2004-016-011 , Claim No. 98015


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):

Alan C. Marin
Claimant's attorney:
Joseph Soffer, Esq.By: Bruce S. Ginsberg, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 3, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claim of Souriba Suwareh, who on August 22, 1996, while working on a roofing project at a building in the Bronx Psychiatric Center, was injured by hot tar that splashed on his feet.

August 22 was the first day of the job, with a crew of about six. Mr. Suwareh was working for Olympic Waterproofing Corporation, under a contract the State of New York had entered into with M.B.L. Contracting Corporation (cl exh 2).[1]
The project was to patch a roof that had been leaking; this was a flat roof about 16 to 18 feet high. What was involved was stripping off the existing, but worn roofing material, and then putting rolled roofing material on top of hot tar.
In the morning, the claimant and Abdulai Kabba, who testified at trial and was a co-worker and friend of Suwareh's, were working on the roof. Kabba was pulling tar up in a five-gallon bucket, handing it to claimant, who in turn passed it on to Degoumes Masala, the crew chief.
The tar had been heated in a kettle set up on the ground below, where there were two or three workers.
After lunch, claimant and Kabba both continued to work on the roof, but the two switched jobs. Suwareh was now standing close to the edge of the roof pulling up the five-gallon bucket of hot tar on a rope. This was all done by hand; there was no mechanical device such as a pulley or hoist. Claimant had been pulling the bucket up for something less than an hour,[2]
when the accident occurred, which he described as follows:
I was pulling the bucket . . .and it stuck at the edge of the building. So I lean over the building to pick out the bucket because it's stuck . . . the bucket was so full so a little bit I'm going to fall down. I plan to pull – lean bucket back to control my balance . . . I was going to put on then floor [of the roof], bucket fall down on my - - my feet. I can't control myself this time . . . It was liquid tar. The hot tar.

Suwareh explained further on cross-examination:
You have to stand up over here because to see the people on the ground, the hot liquid might spill [on] the people on the ground . . . So you have to stand next to the edge . . . to see the bucket, how the bucket is going . . . So I have to . . . lean over the building to take it up, the bucket . . . because the bucket as soon as I take it out . . . I lose my balance and I try to control I don't fall over the building . . . So it just . . . spilled [on] my feet...

Suwareh was a credible witness whose demeanor was that of a person very uncomfortable with anything other than the truth, although claimant did have some trouble conveying his recollection with precision. Moreover,
Suwareh's testimony was consistent with that of Kabba's. In any event, to this trier of fact, what is essential for the purposes of Labor Law §240.1 is sufficiently clear. Claimant was trying to preserve his balance so that he would not fall off the roof and/or to drop the hot tar on the workers below; the result was that he spilled the tar on himself.
This is an elevation-related risk within the contemplation of §240.1 of the Labor Law. In
Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993), the Court of Appeals, elaborating on its decision in Rocovich v Consolidated Edison Co., 78 NY2d 509, 577 NYS2d 219 (1991), stated the principle as follows:
The "special hazards" to which we referred in Rocovich . . . are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured . . .
81 NY2d at 501, 601 NYS2d at 52.
The plaintiffs in these two Court of Appeals decisions failed to satisfy the §240.1 standard. Donald Rocovich was removing and repairing insulation-covering pipes which were in a recessed area of defendant's roof when he slipped and fell into a 12-inch deep trough in the middle of the recess carrying a stream of hot oil. In the other case, Mr. Ross, who was engaged in welding a seam near the top of a shaft that was 40 to 50 feet deep, injured his back stretching to reach the area that he was working on. Neither case involved "harm directly flowing from the application of the force of gravity to an object or person." 81 NY2d at 501, 601 NYS2d at 53.

The injury to Suwareh was gravity-related as was that found by the First Department in
Mills v Tumbleweed Management Co., 270 AD2d 121, 704 NYS2d 571 (2000), in which plaintiff was also using a rope to bring work materials up to a building roof. There the appellate court, in denying defendant's motion for summary judgment, stated that if plaintiff injured his back as he said he had, namely by pulling back on the rope to keep from falling after it had violently jerked him forward when the materials became stuck on the way up, such was elevation-related and therefore comprehended by §240.1.[3]
As was the case in
Mills, the applicability of §240.1 is not affected by the fact that there was no ladder, scaffold or mechanical hoist at the Bronx Psychiatric Center. See also Striegel v Hillcrest Heights Development Corp., 100 NY2d 974, 768 NYS2d 727 (2003); Zimmer v Chemung County Performing Arts, 65 NY2d 513; 493 NYS2d 102 (1985).
With §240.1 liability obtaining for Mr. Suwareh's accident, it is, strictly speaking, unnecessary to reach the applicability of §241.6 of the Labor Law, but not inappropriate to do so. Section 241.6 Labor Law imposes liability on the owner of a construction site, irrespective of its level of supervision, for its negligent failure to provide adequate protection and safety. However, in order to establish liability under this provision of the Labor Law, there must be a violation of the regulations promulgated thereunder, which violation must be of a specific requirement and not merely of a general safety standard. Ross, supra.
I find no predicate rule applicable to the facts here which would implicate liability under §241.6; nor could defendant's or claimant's expert engineer point to one.
Section 23-6.1 to 23-6.3 of these Rules (Volume 12[B] of the NYCRR), entitled Material Hoisting, does not apply to the hand pulling of a bucket with a rope, and therefore the provisions of the Rules covering tag lines and hoist brakes do not come into play (§23-6.1[h] & [j][1]).
In view of the foregoing, the Clerk of the Court is directed to enter interlocutory judgment in full against the defendant on liability for Souriba Suwareh's accident of August 22, 1996 and any injury resulting therefrom. The parties will be contacted by Chambers to schedule a trial on damages and, if appropriate, a conference preceding the trial.

March 3, 2004
New York, New York

Judge of the Court of Claims

[1] The relationship between M.B.L and Olympic Waterproofing was never made clear. Project E-5653-T, an emergency contract, was described on page 1 of the contract as follows:

"Bronx Psychiatric Center // Repair Roof at Building No.1 and Building No. 2 // Remove Asbestos at Small Ceiling."

[2] There is some uncertainty about the time of the accident. Claimant's exhibit 1, a memo prepared by the State inspector (Robert Ruiz) placed the time of accident at "approximately 2:30 pm," but the testimony of claimant and Abdulai Kabba was that they did not get started after lunch until 2:30, and that claimant was pulling buckets up for a while before his injury occurred. Kabba testified that the accident happened between 3 to 3:30 p.m., but did not disagree when his cross-examiner then said, "So, between two-thirty to three-thirty."
[3] The decision of the First Department refers to the facts as alleged by plaintiff in his affidavit; it is unnecessary to review the affidavit itself, or for that matter, determine whether such review is proper (claimant appended the Mills' affidavit to its Post-Trial Memorandum of Law as Exhibit A, to which defendant objected).