New York State Court of Claims

New York State Court of Claims

PROCOVAS v. THE STATE OF NEW YORK, #2006-016-029, Claim No. 93493, Motion No. M-70931


Summary judgment was granted to claimant who fell from unsecured ladder where defendant raised no triable issue of fact as to whether claimant’s conduct was the sole proximate cause of his accident.

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):

Alan C. Marin
Claimant’s attorney:
Sullivan Papain Block McGrath & Cannavo P.C.By: Paul N. Schlemmer, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik-Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 14, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


On September 2, 1994, Kostas Procovas was working on renovating the bathrooms of a house for use by the clients of the State Office of Mental Retardation and Developmental Disability (OMRDD), at 7768 Amboy Road in Staten Island. Part of the job involved the installation of air vents, which required access to the roof of the two-story structure. Mr. Procovas fell from a ladder as he approached the roof. This is the motion by Mr. Procovas and his wife, Maria,[1] which is opposed by the defendant State of New York, for partial summary judgment under §240.1 of the Labor Law, commonly known as the scaffold law. In order to protect workers at construction sites from falling or being struck by material that falls from an elevated work area, the Labor Law requires that “scaffolding, hoists . . . ladders,” among other devices, be “constructed, placed and operated as to give [workers] proper protection . . .”

What follows is from claimant’s deposition of June 8, 2004 and is uncontradicted by any other testimony or documentation (cl aff sup, exh F). The weather was sunny and claimant was wearing his construction boots. Procovas was not carrying any equipment; he had intended to inspect the roof before beginning work up there. He placed the ladder, which was sufficiently long, on a wooden deck and propped it against the wall. The ladder was not secured, neither held by another worker or by some mechanism; nor was claimant tied down via a harness. Procovas continued: “Right before I [got] on the roof, the ladder moved, moved to the right, and I was - - I had my hands on the gutter, that’s when the ladder started moving on the left and I just screamed, and that’s all I remember.” (Id., exh F, p 76).

Procovas explained that the ladder was in good condition, and he “didn’t see anything wrong with the deck ” (id., p 77). After falling, claimant noticed a hole in the wooden deck which he had not seen before, and suggested that it might have been created when he lost his balance.

In any event, such a fall from an unsecured ladder that moved or slipped establishes a prima facie case entitling claimant to judgment under §240.1, which the defendant here fails to rebut because it does not raise a triable issue of fact as to whether Procovas’ conduct was the sole proximate cause of his accident. Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 771 NYS2d 484 (2003); Chlap v 43rd Street-Second Avenue Corp., 18 AD3d 598, 795 NYS2d 617 (2d Dept 2005); Velasco v Green-Wood Cemetery, 8 AD3d 88, 779 NYS2d 459 (1st Dept 2004). This result in claimant’s favor is not impaired by the fact that: claimant’s mishap was unwitnessed (Klein v City of New York, 89 NY2d 833, 652 NYS2d 723 (1996)); Procovas was not quite sure how it had occurred (Orellano v 29 East 37th Street Realty Corp., 292 AD2d 289, 740 NYS2d 16 (1st Dept 2002)); or that he was both an employee and the owner of Bolero Contracting Corporation (Blake, supra).
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As a threshold matter, defendant states that it was not the owner, nor the agent of the owner, of 7768 Amboy Road. Section 240.1 covers, “contractors and owners and their agents.” According to defendant, the premises were owned by the New York State Medical Care Facilities Finance Agency (MCFFA) and leased to the State’s OMRDD (def aff in opp, ¶¶ 3 & 4). The indicia of ownership under §240.1 includes having an interest in the property such as being a lessee and the right to contract for the job on which the employee was injured. Kane v Coundorous, 293 AD2d 309, 739 NYS2d 711 (1st Dept 2002); Copertino v Ward, 100 AD2d 565, 473 NYS2d 494 (2d Dept 1984).

The Amboy Road property was leased to OMRDD for its “use in the care, maintenance and treatment of the mentally ill . . .” (cl aff sup, exh E, p 11). In his June 11, 2003 deposition, Mauro Lapetina, the assistant general counsel for the Dormitory Authority, testified that the property was being used for OMRDD’s purposes and that such operations by the OMRDD had not changed in 1991 when the title interest in the property was transferred to the MCFFA (id., exh G, p 28). Phil Kuka, an employee of OMRDD, testified in his deposition of August 10, 2004 (id., exh H) that he was the contracting officer for the Bolero contract, had prepared the contract specifications, and visited the work site on a daily basis while the bathroom renovations were ongoing. In short, the defendant was an owner of 7768 Amboy Road within the meaning of §240.1.

In addition, defendant argues that even were the State of New York the owner of 7768 Amboy Road, it would, in any case, be subject to the exemption contained in §240.1 for “owners of one and two-family dwellings who contract for but do not direct or control the work . . .” The premises were for the use of OMRDD as a group home, and as such would fall outside this exemption intended to protect individual homeowners lacking the resources to comprehend and manage their potential liability under the Labor Law. Van Amerogen v Donnini, 78 NY2d 880, 573 NYS2d 443 (1991).
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In view of the foregoing and having reviewed the submissions of the parties,[2] claimants’ motion for partial summary judgment (M-70931) is granted. The Clerk of the Court is directed to enter interlocutory judgment against the defendant for 100% liability as a consequence of Kostas Procovas’ accident of September 2, 1994, and any injury or injuries resulting therefrom.

April 14, 2006
New York, New York

Judge of the Court of Claims

[1]. Since the claim of Mrs. Procovas is derivative of that of her husband’s, in this Decision and Order, references to “Procovas” and “claimant” (in the singular) will mean Kostas Procovas.
[2]. On behalf of claimants: a Notice of Motion together with an Affirmation in Support, to which exhibits A through H are appended; and a Reply Affirmation. On behalf of defendant: an Affirmation in Opposition; and a Memorandum of Law.