New York State Court of Claims

New York State Court of Claims


THE NEW YORK STATE THRUWAY AUTHORITY, #2005-030-562, Claim No. 108026, Motion Nos. M-70287, CM-70533


Case Information

MICHAEL DIONYSIOU The caption has been amended to reflect the only proper defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 20, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 §3212:
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

  1. Plaintiff's (sic) Affirmation in Opposition to Cross-Motion by Lawrence P. Biondi and attached exhibits
  1. 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 defense.

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 Claimant[1] - 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[2] - 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 [id.]. 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) Cross-Motion, 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 trial.

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 York, 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 (1986).[3]

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 and requires

". . . [ 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 Dept 2003).

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 Defendants.

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
White Plains, New York

Judge of the Court of Claims

[1] There is also an accident report indicating a three (3) foot fall. [See Affirmation in Support of Respondents' (sic) Cross-Motion, Exhibit F].
[2] 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].
[3]"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)."