New York State Court of Claims

New York State Court of Claims

TABERSKI v. THE STATE OF NEW YORK, #2005-028-526, Claim No. 108043, Motion No. M-68654


Motion 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:
ROTHSCHILD LAW FIRM P.C.BY: Martin J. Rothschild, Esq.
Defendant's attorney:
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for partial summary judgment on her cause of action pursuant to Labor Law § 240(1):

  1. Notice of Motion and Supporting Affirmation of Martin J. Rothschild, Esq, (Rothschild Affirmation) with annexed Exhibits filed June 21, 2004;
2) Claimant's Memorandum of Law;

3) Affirmation in Opposition of Assistant Attorney General G. Lawrence Dillon (Dillon Affirmation) with annexed Exhibits filed July 6, 2004;
4) Reply Affirmation of Martin J. Rothschild, Esq. (Rothschild Reply) filed July 12, 2004; and

5) Claimant's Reply Memorandum of Law.

The Court previously granted Claimant Rebecca Taberski permission to late file a claim against the Defendant alleging violations of Labor Law §§ 200, 240 and § 241 (6) (Taberski v State of New York, Ct Cl, Sise, J., Claim No. None, July 10, 2003 UID No. 2003-028-555 [unreported decision][1]).

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. On June 19, 2002, Claimant was employed by Green Island Construction as a laborer and assigned to work on a reconstruction/repaving project of Defendant's State Route 56 in Norwood, St. Lawrence County. At the time of her injury, Claimant had been directed to parge drain inlets. Parging drain inlets is a process best described as sealing the connection between the drainage pipes and the drain inlet box - a concrete box used to collect runoff - by using brick and mortar on both the outside and inside of the drain inlet. The drain inlet box was approximately five feet in height and large enough for Claimant to enter from the opening - manhole - on top of the box. The drain inlet boxes are situated in the trench and the top is seated beneath grade level. To work on the outside of the box, Claimant would enter the trench from a shallow end and walk to the drain inlet. As part of the project, trenching was necessary. The trench leading to the drain inlet Claimant was working on at the time of her accident was at least five feet deep at the drain inlet and continued past the drain inlet -undercutting a portion of the roadway surface, creating an asphalt ledge or platform which extended two feet beyond the edge of the roadway. At the time of Claimant's accident, she had completed parging the outside of the box and was preparing to enter the box to work. Prior to entering the box Claimant would lower her pails fo mortar and brick into the box. Entry into the box was gained by removing the top grate and then stepping onto a shovel in the opening. As Claimant moved the top grate she was standing on the asphalt ledge created by the trench. The asphalt collapsed causing Claimant's right leg to fall through the pavement. That occurred, Claimant then continued to fall striking the pavement with her buttocks. Claimant's fall was stopped as her body wedged - by her right shoulder and left leg - in the opening. Claimant then lowered herself into the trench.

The rule governing summary judgment is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Labor Law § 240 (1) provides:

"All contractors and owners and their agents . . . 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."

In Blake v Neighborhood Hous. Serv. of New York City, Inc. (1 NY3d 280), the Court of Appeals reviewed the history and purposes of Labor Law § 240 (1) and reaffirmed the rule that an accident alone does not establish a Labor Law § 240 (1) violation, and that absolute liability requires a violation of the statute (Abbatiello v Lancaster Studio Assocs., 3 NY3d 46, 50). "The purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves" (Panek v County of Albany, 99 NY2d 452, 457,] [citations omitted]) unless the injured individual is a "recalcitrant worker" (see Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35). Labor Law § 240 (1) is not all encompassing; rather, it covers only those hazards "related to the effects of gravity where protective devices are called for ... because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; Cummings v I. & O. A. Slutsky, Inc., 304 AD2d 860, 861 [worker who fell on a ramp and slid down an incline was not injured by an elevation hazard]). In the Third Department, the court has stated that Rocovich and its progeny have limited the statute's reach to such specific gravity-related accidents as falling from a height or being struck by a falling object (see White v Sperry Supply & Warehouse, 225 AD2d 130, 132, Moutray v Baron, 244 AD2d 618). In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, Claimants are aided with a presumption that the ladder or scaffolding device was not good enough to afford proper protection (Blake, supra at 289; see also Squires v Marini Bldrs., 293 AD2d 808, 809, lv denied 99 NY2d 502).

Applying the foregoing to the instant facts, the Court finds Claimant has established prima facie entitlement to summary judgment on her Labor Law 240(1) cause of action as she was injured in a fall from an elevated worksite (see Finkle v A.J. Eckert Co., Inc., 11 AD3d 794; Congi v Niagara Frontier Transportation Authority, 294 AD2d 830; Amo v Little Rapids Corp., 301 AD2d 698) while performing covered work and the failure of Defendant to provide an enumerated safety device - shoring or bracing of the asphalt ledge or other appropriate platform - was the proximate cause of Claimant's injury. Accordingly, the burden shifts to defendant to "submit evidence which would raise a factual issue, or an acceptable excuse, for its failure to provide the 'proper protection' " (Davis v Pizzagalli Constr. Co., 186 AD2d 960, 961).

Defendant opposes the application, putting aside the inconsequential procedural objections raised by both parties[2], arguing material questions of fact exist regarding whether Claimant "fell" within the meaning of the statute (Dillon Affirmation ¶ 5) and whether there was a failure to provide statutory safety devices (Dillon Affirmation ¶ 6).

Defendant's contentions to the contrary, the fact that, in the instant claim, Claimant did not fall completely through the asphalt to the trench below does not, in and of itself, preclude liability under §240(1). To the extent Defendant is suggesting the Claimant simply fell to the pavement (Dillon Affirmation ¶ 5) , the Court notes that Defendant omitted from its excerpt of Claimant's deposition testimony the beginning of her answer where she stated "my right leg went through the pavement first." (see Dillon Affirmation, Exhibit A at p 34 lines 5-15 [emphasis added]). Where, as here, circumstances would otherwise support liability if the worker fell all the way to the ground, the legal effect is no different if the worker was fortunate enough to fall only part-way through. This point was most recently made by the Court of Appeals in Striegel v Hillcrest Heights Dev. Corp., 100 NY2d 974 where a roofer who fell and slid down toward the eaves did not fall off the roof as his pants caught on protruding nails. The Court noted that to require ground contact would represent "an overly strict interpretation of section 240 (1)...[and] exclude from section 240 (1) workers who succumb to elevation-related risks but, for whatever reason, do not make it to the ground" (id. at 978; see also O'Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60; Robertti v Powers Chang, 227 AD2d 542, 543, lv dismissed 88 NY2d 1064).

Defendant's further argument that a question of fact exists as to available safety devices is simply speculation. The devices identified as used by Claimant - ropes, a pail, a shovel and a ladder (Dillon Affirmation ¶ 6) - are those devices used by Claimant to enter into the box from above or to lower her materials into the box. Defendant fails to point to the presence of any safety device available to Claimant that would have prevented the collapse of the asphalt ledge she was working upon as she moved the drain inlet's cover[3]. Moreover, the Court's review of the record submitted likewise fails to find any evidence that such devices were available to Claimant. Under such circumstances, Defendant has failed to raise a material issue of fact as to the presence of appropriate safety devices so as to implicate the recalitrant worker defense (see Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35).

Based upon the foregoing, the Court finds that Claimant has established her entitlement to summary judgment on the issue of liability on her Labor Law §240(1) cause of action and therefore grants Claimant's motion for partial summary judgment.

The Clerk of the Court is hereby directed to enter interlocutory judgment in accordance herewith.

The parties are directed to appear in the Court's Utica Chambers on April 28, 2005 at 12:30 p.m.

March 29, 2005
Albany, New York

Judge of the Court of Claims

[1] Claimant's husband has filed a derivative claim.
[2] Defendant urged the motion be denied as Claimant did not provide all papers to Defendant (Dillon Affirmation ¶ 4) and Claimant responded that the papers were provided to the Court and otherwise had been previously served upon Defendant. Claimant also countered that Defendant had impermissibly placed legal arguments and case citation into an affirmation (Rothschild Reply ¶ 3). The Court reaches the merits of the application.
[3] In this regard, the Court notes Defendant's opposition is comprised of an attorney affirmation and Claimant's deposition transcript.