DIONYSIOU v. THE STATE OF NEW YORK and
THE NEW YORK STATE THRUWAY AUTHORITY, #2005-030-562, Claim No. 108026, Motion
Nos. M-70287, CM-70533
MICHAEL DIONYSIOU The caption has been amended to reflect the only proper defendants.
Footnote (claimant name)
THE STATE OF NEW YORK andTHE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
LAWRENCE P. BIONDI, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
FABIANI & COHEN, LLP, OF COUNSELBY: LOIS FELDMAN, ESQ.
December 20, 2005
See also (multicaptioned
The following papers numbered 1 to 8 were read and considered on Claimant's
motion for summary judgment [M-70287] and Defendants' cross-motion for summary
judgment [CM-70533], brought pursuant to Civil Practice Law and Rules
1,2 Notice of Motion; Affirmation in Support of Motion by Lawrence P. Biondi,
attorney for Claimant and attached exhibits
3,4 Cross-Motion for Summary Judgment; Affirmation in Support of Respondents'
(sic) Cross-Motion for Summary Judgment and in Opposition to Claimant's
Motion by Lois Feldman, attorney for Defendants and marked exhibits
Plaintiff's (sic) Affirmation in Opposition to Cross-Motion by Lawrence
P. Biondi and attached exhibits
Reply Affirmation to Claimant's Opposition to the Respondents' (sic)
Cross-Motion for Summary Judgment by Lois Feldman
7,8 Filed Papers: Claim, Answer
Michael Dionysiou alleges in Claim number 108026 that he was injured on May 16,
2003 when he fell approximately 25 feet from a dangerous and defective ladder
permanently affixed to the Tappan Zee Bridge to a boat below. [Affirmation in
Support of Motion , Exhibit 1]. He claims he was not provided with the
appropriate safety harness, safety line and safety net, and that the ladder was
wet and slippery, all in violation of Labor Law §§200, 240 and in
violation of Labor Law §241(6), predicated upon Industrial Code violations
codified at 12 NYCRR §§23-1.7, 23-1.8, 23-1.15, 23-1.16, 23-1.17,
23-1.21, 23-5.1, 23-5.2, 23-5.3, 23-5.7, 23-5.8, 23-5.9, 23-5.10.
[id.]. Having sustained severe and permanent personal injuries,
Claimant seeks damages for past and future pain and suffering, lost wages, and
medical expenses [id.].
In their Answer, in addition to general denials, the Defendants assert seven
(7) affirmative defenses, including but not limited to Claimant's culpable
conduct as the sole proximate cause of his injuries and the recalcitrant worker
On May 16, 2003 Mr. Dionysiou was employed as a "rigger" by Dynamic Painting
Corporation (hereafter Dynamic), a subcontractor of L & L Painting Company,
Inc. (hereafter L & L), the general contractor retained by the New York
State Thruway Authority (hereafter Thruway Authority) in connection with a lead
abatement and painting project at the Tappan Zee Bridge. On that day, he had
been on the job at that location for approximately three (3) months, preparing
"cables, scaffolds, containment . . . [e]verything you need to do . . ." to make
the area ready for work by the men. [Affirmation in Support of Motion, Exhibit
2, P 12]. The actual work being performed on that day was sand blasting and
painting, and Claimant "supplied" the men - as he described it - with whatever
tools or support was needed for the tasks as they progressed.
At approximately 4:30 p.m. Claimant was descending a series of four separate
ladders each approximately 30 feet long - according to
- to the boat below when his hand
slipped and he fell off the first step of the final section. Other than the fact
that it was slippery, Claimant could not say that the ladder was in any
disrepair or otherwise defective.
Claimant asserted that he had made complaints to his foreman - who directed all
his work - about the use of the ladder prior to his accident, specifically to
the effect that there were no safety harnesses or safety lines provided.
The boat was provided by Dynamic and, as far as indicated in his deposition,
this was the means for arriving at the job site. There are suggestions that the
Thruway Authority was aware that Dynamic was gaining access to the job site by
this method, [Plaintiff's (sic) Affirmation in Opposition to
Cross-Motion, Exhibit 1], and that the Thruway Authority was involved in
approving any construction schedule changes, and terminating work for any reason
such as bad weather. [Affirmation in Support of Motion, Exhibit 4].
Representatives of L & L and the consulting engineer hired by the Thruway
Authority were at the site on a daily basis and had some level of involvement
subject to dispute. [id. and Affirmation in Support of
Respondents' (sic) Cross-Motion, Exhibits E, F].
A catwalk containing handrails to a paved area - which may or may not be
attached to the affixed ladder - it was unclear from those portions of the
depositions describing the worksite
- was the
proper means for entering and exiting the job site. [Affirmation in Support of
Motion, Exhibit 4]. The catwalk started on the Tarrytown side under the bridge
on a paved area, and led to the first tower leg of the bridge
At some point the Dynamic foreman was told, perhaps,
by the general contractor, that they were to only use the catwalk provided, not
the work boat. [Affirmation in Support of Respondents'(sic
Exhibits B, C, D].
Without reciting chapter and verse of the disputed facts presented by both
sides, disputes there are, as shown by the voluminous submissions. Indeed,
counsel are reminded that resolution of a matter by summary determination does
not require the Court to decide factual disputes more properly addressed at
DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie
showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine material issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center
, 64 NY2d 851 (1985); Zuckerman v City of New
, 49 NY2d 557 (1980). The use of an attorney's affirmation appending
pertinent deposition testimony, documentary evidence, and a verified pleading
reciting material facts, is not a fatal procedural flaw in a presentation.
Alvarez v Prospect Hospital
, 68 NY2d 320, 325
As an initial matter, the Court will treat the motion as adequately supported.
Claimant has asserted causes of action pursuant to Labor Law §§200,
240(1) and 241(6), and asks that partial summary judgment be granted with
respect to the Labor Law §240(1) cause of action.
Labor Law §200 codifies the common-law duty of an owner or contractor to
exercise reasonable care in providing workers a safe place to work. Comes v
New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993)." Where the
alleged defect or dangerous condition arises from the contractor's methods and
the owner exercises no supervisory control over the operation, no liability
attaches to the owner under the common law or under Labor Law §200 . . .
(citation omitted)." Comes v New York State Elec. & Gas
Corp., supra. ". . . [S]upervision is not required to establish
liability if . . . [the worker's] injuries were caused by a dangerous condition
on the premises of which the owner or general contractor had actual or
constructive notice . . . (citation omitted)." Wallace v City of New
York, 8 Misc 3d 1024(A) (Sup Ct, NY County 2005).
Labor Law §240(1) - the so-called Scaffold Law - imposes strict liability
". . . [ a]ll contractors and owners and their agents . . . [with some
exceptions], 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." The work being done should contain
an elevation related risk, and the injury suffered by the worker should be
associated with that risk.
The recalcitrant worker defense ". . . requires a showing that the worker
deliberately refused to use safety devices available and visibly in place at the
worker's immediate work site
. . . (citations omitted)." Morin v Machnick Builders, Ltd., 4
AD3d 668, 671 (3d Dept 2004).
Strict liability under Labor Law §241(6) attaches if the owner or
contractor has violated a rule or regulation of the Commissioner of Labor that
sets forth a specific standard of conduct - as opposed to a general statement of
common law principles. Labor Law §241(6) requires all owners and their
agents, with certain exceptions, to provide "reasonable and adequate protection
and safety to the persons employed therein . . . ," and directs that appropriate
regulations be promulgated to carry into effect the provisions of the statute.
Violation of that specific standard must be a proximate cause of the accident.
See, generally 12 NYCRR §23-1.1 et seq.
Claimant has established that he was engaged in an activity protected under
Labor Law §240(1). Sandblasting and painting portions of the Tappan Zee
Bridge - a "permanent structure" under the statute - is performing the kind of
work contemplated by the statute. See generally Rocovich v
Consolidated Edison Co., 78 NY2d 509 (1991); Aranda v Park East
Construction, 4 AD3d 315 (2d Dept 2004). Whether Claimant failed to avail
himself of safety equipment provided, however, is another issue, not susceptible
to summary determination. Liability is contingent upon both a finding of a
statutory violation and proximate cause. Blake v Neighborhood Housing
Services of N.Y. City, 1 NY3d 280 (2003) see also Negron v City of
New York, 22 AD3d 546 (2d Dept 2005). Among other factual issues requiring
resolution is whether Claimant was aware that there was a proper and ostensibly
safer means of ingress and egress provided. Cahill v Triborough Bridge and
Tunnel Authority, 4 NY3d 35 (2004).
Additionally, simply because Claimant fell off the ladder does not establish
that it did not provide proper protection. Where the device fallen from is not
shown to be broken or defective, whether it provided proper protection under the
Labor Law is a fact issue. Perri v Gilbert Johnson Enterprises, 14 AD3d
681 (2d Dept 2005); Taglioni v Harbor Cove Associates, 308 AD2d 441 (2d
Accordingly, Claimant's motion for partial summary judgment based upon his
cause of action alleging a violation of Labor Law §240(1) is denied.
By the same token, Defendant's cross-motion for summary judgment dismissing the
claim is also denied. Claimant may well establish entitlement to a finding of
liability under Labor Law §§200 and 241(6) at a plenary trial. There
are issues of fact surrounding the applicability of the plethora of code
violations cited as well as issues of control and supervision by both State
For the foregoing reasons, Claimant's motion for partial summary judgment
[M-70287] and Defendants' cross-motion for summary judgment dismissing the claim
[CM-70533] are hereby denied.
December 20, 2005
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
There is also an accident report indicating a
three (3) foot fall. [See
Affirmation in Support of Respondents'
) Cross-Motion, Exhibit F].
Photographs attached to Claimant's moving
papers and referred to in Claimant's deposition are not clear, yet appear to
show a portion of a catwalk in addition to the ladder. [Affirmation in Support
of Motion, Exhibit 6].
"A fair reading of the attorney's affirmation,
the hospital records and the defendant's deposition testimony compel the
conclusion that no material triable issues of fact exist as to the claims of
malpractice asserted against the defendant in the amended complaint as amplified
by the bill of particulars. The fact that defendant's supporting proof was
placed before the court by way of an attorney's affirmation annexing deposition
testimony and other proof, rather than affidavits of fact on personal knowledge,
is not fatal to the motion . . . (citations omitted