New York State Court of Claims

New York State Court of Claims

TENNANT v. THE STATE OF NEW YORK, #2006-009-020, Claim No. 107158, Motion Nos. M-70824, CM-70857


Claimants' cross-motion for summary judgment on their Labor Law § 240(1) cause of action was granted. Defendant's motion for summary judgment dismissing the claim was denied.

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:
BY: Michael V. DeSantis, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, claimants seek damages for personal injuries suffered by Robert Tennant[1] based upon alleged violations of Labor Law § 240(1) and § 241(6). Defendant has brought a motion (M-70824) seeking an order of summary judgment dismissing the claim. Claimants have responded with a cross-motion (CM-70857), not only in opposition to defendant's motion, but also seeking an order of summary judgment in their favor on the issue of liability.

The Court has considered the following papers in connection with this motion and cross-motion:
Notice of Motion, Attorney Affirmation, with Exhibits A-I 1,2

Memorandum of Law 3

"Cross Notice of Motion", Affidavit of Robert Tennant 4,5

Memorandum of Law 6

Affirmation in Opposition to Cross-Motion 7

On the basis of deposition testimony from claimant, his coworkers, his employer, and other non-party witnesses (see transcripts of deposition testimony attached to Defendant's moving papers as Exhibits C-G), the parties have separately stated that there are no material issues of fact, and each party therefore seeks a determination of summary judgment as to liability in their favor.

At the time of this incident, claimant was an employee of Murphy Contracting. In 2002, Murphy Contracting had entered into a contract with the State to perform roofing work on property owned by the State at 2-4 Academy Street in the Town of McGraw. This work involved the installation of a metal roof on a house located at these premises.

On November 4, 2002, claimant was working at the job site with two coworkers, Mark Cox and Chad Tennant (claimant's brother). The lower part of the roof was approximately five or six feet above the ground, and claimant was approximately four feet up on the roof at the time of the incident. Claimant was installing metal panels to the roof, and Mark Cox was working above claimant near the peak of the roof. It was raining at the time, and claimant admitted that he was wearing sneakers.

At some point, Mark Cox lost his footing and began to slide down the roof. Claimant reached out to stop him from falling, and lost his own footing. Both claimant and Mark Cox fell off the roof. When claimant fell, he first struck a railing and then a heating or air conditioner unit adjacent to the house, suffering his injuries.

Claimant acknowledges that neither he nor any of his coworkers were wearing safety equipment of any nature (such as harnesses or belts) at the time that he and Mr. Cox fell from the roof.

In his deposition testimony (see Exhibit G), Kevin M. Murphy, the owner of Murphy Contracting, testified that safety equipment, in the nature of harnesses and ropes, was available for use by the workers on this project. He also stated that such safety equipment was required to be used by all employees who worked on roofs or other elevated sites "when it's necessary", and not that his policy required use on "anything over six feet" (p. 22). He further stated that employees had received instructions as to this requirement.

Claimant not only admits that he was not using any safety devices at the time of his fall, but also that he made a conscious decision not to use them, since he did not believe that the roof was either steep or high enough to justify their use. Claimant was also considered to be the foreman, or the person in charge, of this three-man work crew, due to his prior work experience. Claimant acknowledges that use of the safety equipment (harness and rope) in all likelihood would have prevented his fall.

The parties separately acknowledge, in their respective submissions, that the sole issue to be determined herein is the applicability of the recalcitrant worker defense to the undisputed facts and circumstances of this claim.[2]

Labor Law § 240(1) imposes a nondelegable duty upon an owner and general contractor to provide adequate safety devices to protect workers from the danger of falling from an elevated work site. The purpose of the law is to protect workers and place ultimate responsibility for work site safety on the owner and general contractor instead of the worker (see Ross v Curtis-Palmer Hydro-Elec.Co. 81 NY2d 494, 500; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513). The statute is to be construed liberally in order to accomplish its purpose of protecting the worker (Gordon v Eastern Railway Supply, Inc., 82 NY2d 555, 559).

Under this statute, owners and contractors are liable whether or not they supervise or control the work, and a claimant's comparative negligence is not a defense in any action based upon a violation of the statute (see Blake v Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d 280).

Liability under § 240(1) can be avoided, however, if an owner provides adequate safety devices and a worker refuses to use them (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361). In other words, if an owner or contractor can prove that adequate safety devices were available, that the injured worker knew they were available and that he or she was instructed to use them, that the worker deliberately refused to use the equipment, and, had the worker not made that decision, he or she would not have been injured, liability may be avoided (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35).

In this particular matter, claimant contends that he did not receive any specific instructions to use the safety equipment, and further contends that this safety equipment was not readily available at the work site.

In his deposition (see Exhibit G) Kevin M. Murphy, testified that his workers were required to use safety equipment, when necessary, but he was "not positive of the exact conversations" that he had had with claimant and his coworkers (page 23). The Court of Appeals has clarified that with regard to specific instructions to use safety equipment, a worker is "not the less recalcitrant because there was a lapse of weeks between the instructions and his disobedience of them." (Cahill v Triborough Bridge & Tunnel Auth., supra at 39). Such instructions, however, must be specific, and general safety instructions given in the past are not sufficient to invoke the defense (Gordon v Eastern Railway Supply, Inc., supra).

Mr. Murphy also testified that safety equipment was available for his employees at the time of this incident, and that such equipment would have been either stored in his garage or in one of his vehicles, but he did not know exactly where such safety equipment (harness and belts) was located (page 47).

Chad Tennant, a coworker who was on the ground when this accident occurred, testified that the safety belts and harnesses were generally with them in the van, but that he did not recall if they were in the van on the day of the accident (see Exhibit E, page 39). Mark Cox, claimant's other coworker, testified that the safety belts and harnesses were located in a garage at the job site on the day of the accident (see Exhibit F, page 23).

"The presence of safety devices somewhere on the work site does not discharge the owner's duty to provide proper protection to workers" (Szuba v Marc Equity Props., Inc., 19 AD3d 1176). In this case, there is no credible evidence to establish exactly where the safety equipment was located on the day of the accident. The equipment was either in the garage at Murphy Contracting, in one of the vehicles owned by Murphy Contracting, in the van which was used by claimant and his coworkers on the day of the accident, or in a garage situated on the work site property. At best, this Court can only conclude that safety devices were generally available to the workers, but that they were not available for immediate use by claimant and his coworkers in the immediate area of the work site. The presence of appropriate safety equipment "somewhere on the work site is insufficient to satisfy the [recalcitrant worker] doctrine" (Kaffke v New York State Electric & Gas Corp., 257 AD2d 840, at 841; see also Szuba v Marc Equity Props., Inc., supra; Howe v Syracuse Univ., 306 AD2d 891).

Based on the foregoing, the Court does not find sufficient evidence to establish that claimant refused to follow a specific safety instruction from his contractor to use available and appropriate safety equipment, or that such safety equipment was available for immediate use by him in the immediate area of the work site.

Therefore, the Court finds that defendant has failed to establish that claimant was a recalcitrant worker, and that defense cannot be applied in this instance to avoid liability under Labor Law § 240(1). Since comparative negligence is not a defense under § 240(1), summary judgment on the issue of liability must be granted to claimant on his § 240(1) cause of action. Based on this determination, it is not necessary to consider the cause of action asserted under Labor Law § 241(6).

Accordingly, it is

ORDERED, that Motion No. M-70824 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-70857 is hereby GRANTED; and it is further

ORDERED, that the Chief Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in favor of the claimants in accordance with this decision and order. The Court will set this matter down for a trial limited solely to the issue of damages as soon as reasonably practicable.

March 29, 2006
Syracuse, New York

Judge of the Court of Claims

[1]Since the claim of Penney Tennant is derivative in nature, all references to claimant, unless otherwise specified, are to Robert Tennant.
[2] In her motion (M-70824) defendant's attorney also contends that this claim is barred by the exclusive remedies provided by the Workers' Compensation Law, applicable to employees injured in the course of their employment. Pursuant to § 29(1) of the Workers' Compensation Law, however, an employee is not precluded from pursuing legal remedies for his or her injuries against third parties, notwithstanding the receipt of compensation benefits.