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.
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
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
comparative negligence does not obtain under §240 of the Labor Law.
. 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
NY2d 946, 647 NYS2d 708 (1996); and see Lozada v State of New York
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
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