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
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).
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
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
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
; 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