New York State Court of Claims

New York State Court of Claims

MARINKOVIC v. THE STATE OF NEW YORK, #2004-016-057, Claim No. 108249, Motion Nos. M-68467, CM-68607


Summary judgment under Labor Law §240.1 was granted to construction worker who had no place to "tie-off" and who fell through platform opening while working on bridge project.

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:
DeCaro & Kaplen, LLPBy: Michael V. Kaplen, Esq.
Defendant's attorney:
Cartafalsa, Slattery & MetaxasBy: David A. Drossman, Esq.
Third-party defendant's attorney:

Signature date:
September 21, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Miroslav Marinkovic fell and was injured while working as a painter on the Kosciusko Bridge under a contract his employer, Ahern Painting Contractors, Inc., had with the State of New York for painting the bridge and removing lead (Contract No. D258476, cl affirm, exhs A & J). Mr. Marinkovic's underlying claim is grounded upon sections 200, 240 and 241 of the Labor Law. Claimant[1] here seeks summary judgment under Labor Law §240 as well as §241.6. Defendant, for its part, cross-moves for dismissal of the claim. On July 3, 2003, Marinkovic, with co-worker Marvin Perez, was rigging cables which would "form the support for a containment system for the painting work that was being undertaken on the bridge" (cl affirm, exh I, ¶3). To do this rigging, the two men had to stand on a platform on the side of the bridge that was 65 feet above the ground. This was the so-called "wing platform," temporary in nature and erected for this specific project. The work surface of the platform was made of wire mesh fencing.

Just after noon, Marinkovic fell about 15 feet to a lower level of the bridge structure. He described what had happened: "While utilizing a pulley device known as a "come along" to tighten the rigging cable, the handle of the device broke off. This caused me to lose my balance and be propelled backward. When I was propelled backward, I fell off the side of the platform through an opening located at the edge of the platform. " (Id., ¶¶ 6 & 7).

Mr. Perez confirmed claimant's account: "I witnessed claimant. . . fall from the temporary work platform on which we were standing, through an unprotected gap/opening which abutted this temporary work platform area to a level below us, a distance of approximately fifteen feet" (id., exh C, ¶ 5). This gap was described by Kieran Ahern, the project manager on the Kosciusko project for Ahern Painting, as "from the edge of the wing platform, to where the steel structure is, of the bridge, itself" ( id., exh D, p. 23). Mr. Ahern said that he did not, until it was too late, realize there was such a space - - big enough for a worker to fall.

The platform, by itself then, did not offer claimant proper protection within the contemplation of Labor Law §240.1; but, could such safety have been achieved by "tying off" - - affixing a lanyard from a body harness to a support independent of the worker, such as a structure or "safety cable"? See Ramos v Port Authority of New York and New Jersey, 306 AD2d 147, 761 NYS2d 57 (1st Dept 2003). The Ahern Painting company had issued, in writing, its basic safety procedures to prevent falls for this specific contract (id., exh J). The memo provided that workers installing the platform system and those on horizontal rigging must be tied off at all times.

Defendant, in its motion papers, offered the deposition testimony of the State Department of Transportation's engineer-in-charge, Joseph Faro. Mr. Faro stated that he was told by one of his inspectors (from an outside firm) that there were a "multitude of places to tie off [to]" (def affirm, exh C, p.13). We do not have any statement from the inspector; while hearsay may be considered in opposition to a motion for summary judgment, it cannot stand alone without any other evidence. Narvaez v NYRAC, 290 AD2d 400, 737 NYS2d 76 (1st Dept 2002); Maniscalco v Liro Engineering Construction Management, P.C., 305 AD2d 378, 759 NYS2d 163 (2d Dept 2003). Defendant does not advance any independent evidence of such tie-off opportunities. In any event, the hearsay statement is not specific that such tie-off was available at the claimant's work site on the wing platform.

In addition to the direct observations of claimant and Perez that there was no place to tie off where Marinkovic was working when he fell, the project manager for the contractor, Mr. Ahern, stated in his deposition that at such spot, the nearest tie-off, to an overhead safety cable, was "inaccessible" to claimant because it was above some scaffolding (cl affirm, exh D, p.22).

Thus, Marinkovic has made the basic showing to recover for an elevation-related construction accident under Labor Law §240.1: proper protection was not provided and such failure was clearly the proximate cause of his fall and resulting injuries. Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 771 NYS2d 484 (2003).

There may well have been acts or omissions by claimant that would otherwise constitute negligence on his part[2], but comparative negligence does not obtain under §240 of the Labor Law. Blake, supra. Finally, on this record, Marinkovic was not a recalcitrant worker, and such defense is therefore unavailable to defendant. To so categorize claimant, defendant must show that there was available protective equipment which claimant, after receiving timely, specific instructions, deliberately refused to use. PJI §2:217.1; Jastrzebski v North Shore School District, 223 AD2d 677, 637 NYS2d 439 (1996), affd 88 NY2d 946, 647 NYS2d 708 (1996); and see Lozada v State of New York, 267 AD2d 215, 215, 700 NYS2d 38, 39 (2d Dept 1999), in which there were not only available safety belts, but a "working safety line at the time of the accident to which the claimant could have attached a safety belt."

Having reviewed the submissions of the parties,[3] claimants' motion (M-68467), insofar as it seeks summary judgment pursuant to subdivision one of Labor Law §240, is granted, defendant's cross-motion (CM-68607) insofar as it seeks dismissal of the cause of action based upon §240.1 is denied. It is unnecessary to reach the parties' motion practice implicating Labor Law §§200, 240.2 and 241.6.

September 21, 2004
New York, New York

Judge of the Court of Claims

[1] Inasmuch as the claim of Mr. Marinkovic's wife, Jadranka, is derivative of her husband's, references in this Decision and Order to "Marinkovic" and "claimant" will mean Miroslav Marinkovic.
[2] For example, Ahern testified that Marinkovic never complained about the lack of places to tie off, even though in addition to the safety memo, there were frequent meetings at which the workers were reminded to tie off at all times (when working above six feet). Cl affirm, exh D, p. 43.
[3] Claimants submitted a Notice of Motion and Affirmation in Support of its motion for summary judgment, as well as an Affirmation opposing and replying to defendant's Cross-Motion; appended to their Affirmation in Support were exhibits A through K. Defendant submitted a Notice of Cross-Motion and an Affirmation supporting its Cross-Motion and opposing claimants' Motion; appended to its Affirmation were exhibits A through C.