New York State Court of Claims

New York State Court of Claims

BORYCHOWSKI v. THE STATE OF NEW YORK, #2006-016-031, Claim No. 109817, Motion Nos. M-71159, CM-71350


Defendant’s and claimant’s motion and cross-motion for summary judgment on Labor Law claim were both denied, as there was a triable issue of fact as to whether claimant was in fact working on a ladder as alleged.

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:
Samuel J. Lurie, Esq.By: Dennis A. Breen, Esq.
Defendant’s attorney:
Wilson, Elser, Moskowitz, Edelman & Dicker LLPBy: Mathew P. Ross, Esq.
Third-party defendant’s attorney:

Signature date:
May 15, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Jozef Borychowski alleges that at 2:30 p.m. on May 21, 2004, he fell from a ladder while working on a construction project to rehabilitate the Whitestone Expressway in Queens County, under a contract that his employer, Tully/Pegno Construction,[1] had with the defendant State of New York. Mr. Borychowski’s claim is based upon §240.1 of the Labor Law, as well as §§200 and 241.6 of such law.

The defendant moves here to dismiss the claim in its entirety. Claimant, for his part, cross-moves for summary judgment on liability under Labor Law §§240.1 and 241.6. The papers submitted on these competing motions were comprised largely of sworn testimony - - Borychowski’s August 13, 2004 hearing under §50-h of the General Municipal Law and the depositions of: claimant, taken on January 31, 2005; Orlando Fernandes, general foreman for Tully/Pegno (October 28, 2005); Wieslaw Kleczkowski, a Tully/Pegno foreman (November 1, 2005); and John Elias, the State’s engineer in charge on the project (February 25, 2005).[2]

The standard on summary judgment is whether a genuine issue of material fact exists. A fall from an unsecured ladder that had moved or slipped establishes a prima facie case entitling claimant to judgment under §240.1, which can be rebutted by defendant if it raises a triable issue of fact as to whether claimant’s conduct was the sole proximate cause of his or her 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).

That a fall was unwitnessed does not bar summary judgment in favor of the construction worker. Klein v City of New York, 89 NY2d 833, 652 NYS2d 723 (1996). Mr. Fernandes recalled the day in question, inasmuch as claimant and one other worker were laid off that day, and he gave Borychowski his final check. According to Fernandes, claimant was not using a ladder, or otherwise subject to an elevation-related risk on the afternoon of May 21, 2004:
[Borychowski] began working under the supervision of the other foreman, Mr. Wesley [sic] Kleczkowski, for a time in the morning, removing the debris of the demolition of the bridge and at some time, some point in the morning, I moved him to the location where he finished the day spreading topsoil [def affirm sup, exh G, p. 31].

To access the demolition site, claimant did need a ladder, but Fernandes recalled that he left that site in the morning at 9 or 10 a.m. In fact, at that time, Fernandes drove Borychowski the half-mile or so to a road median so that claimant could grade and spread topsoil with another worker. According to Fernandes, the spreading of topsoil did not require the use of a ladder, and claimant worked at such task until about 3 p.m. Fernandes supervised the topsoil work, although because of his other responsibilities, was not at the site continuously until 3 p.m.

In the afternoon, Fernandes handed Borychowski his check, and explained that the work was slowing and he had to lay people off. He then drove claimant to his car. Fernandes maintained that Borychowski never said anything about having been injured.

Kleczkowski, a foreman for Tully, was claimant’s supervisor on the morning of May 21, when Borychowski was assigned to remove debris from an elevated roadway, which had resulted from bridge demolition work. Claimant used a ladder to access the roadway. Kleczkowski testified that he was on site at all times and never saw claimant fall. What the foreman did see was Fernandes picking up Borychowski after two or two and a half hours of clearing debris. It was Kleczkowski’s understanding that Borychowski was going to spread topsoil some distance away, near the Whitestone Bridge. In any event, according to Kleczkowski, Borychowski did not return to the area and to the task on which he contends he was injured at 2:30 in the afternoon.

Borychowski’s own version of events contained inconsistencies. For example, at his 50-h hearing, he said that the ladder “moved to the left” just before he fell (def affirm sup, exh D, p.28), but at his deposition, he did not make such reference (id., exh E, pp. 89-90). At his 50-h hearing, he said the ladder was 10 feet long (id., exh D, p. 24), while at his deposition, he said it was 18 feet long (id., exh E, p. 91). Borychowski testified that he took a taxi to a hospital the Friday afternoon he said he had been injured; however, the hospital chart shows that he was admitted the next day, on May 22, 2004 at about 4:25 p.m (id., exh J).

With that said, a basic issue of fact remains, i.e., whether claimant did in fact fall from a ladder at work on the afternoon of May 21, 2004. In that regard, consider Macchia v Nastasi White, Inc., 26 AD3d 225, 809 NYS2d 47 (2006), in which the denial of summary judgment was affirmed by the First Department. The job foreman testified that according to the daily report, Mr. Macchia was not working that day and in any event, the task plaintiff was working on at the time did not involve the use of a ladder: “The foreman’s account thus raises factual issues as to whether plaintiff was subjected to an elevation-related risk, and whether that activity was the proximate cause of his injury.” 26 AD3d at 225-26, 809 NYS2d at 48.

In view of the foregoing, there is an issue of fact as to whether Borychowski was subject to an elevation-related risk, and therefore summary judgment must be denied to both parties with regard to Labor Law §240.1 The cause of action under Labor Law §241.6 is based upon a fall from an unsecured ladder[3]; inasmuch as there is an issue of fact as to whether a ladder was in use, summary judgment must be denied to both parties on this cause of action as well. Similarly, to the extent that defendant moves to dismiss claimant’s §200 cause of action, such must be denied.
Accordingly, IT IS ORDERED that defendant’s motion for summary judgment (M-71159) be denied and that claimant’s cross-motion for summary judgment (CM-71350) be denied.

May 15, 2006
New York, New York

Judge of the Court of Claims

[1]. Tully/Pegno was a joint venture of Tully Construction Co., Inc and Pegno Construction Corporation.

[2]. Claimant submits: an Affirmation in Opposition; a Notice of Cross-Motion and Affirmation with affidavits from claimant and Stanley Fein, P.E. together with exhibits A through D; and a Reply Affirmation. Defendant submits: a Notice of Motion and Affirmation in Support with exhibits A through K; a Reply Affirmation in Further Support; an Affirmation in Opposition to the [Claimant’s] Cross-Motion, and a Memorandum of Law in Support, as well as a Memorandum of Law in Opposition to the [Claimant’s] Cross-Motion.
[3]. Claimant supplied the affidavit of engineer Stanley Fein, which referred to regulations of the Commissioner of Labor relating to the securing of ladders (cl affirm opp).