New York State Court of Claims

New York State Court of Claims

TSAOUSIS v. STATE OF NEW YORK, #2006-018-513, Claim No. 103564, Motion No. M-70370


Synopsis


Claimants' motion for summary judgment is denied.

Case Information

UID:
2006-018-513
Claimant(s):
JOHN TSAOUSIS and FAY TSAOUSIS
Claimant short name:
TSAOUSIS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103564
Motion number(s):
M-70370
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
YOUNG & YOUNGBy: John W. Young, Esquire
Defendant's attorney:
LAW OFFICES of F. DOUGLAS NOVOTNYBy: F. Douglas Novotny, Esquire
Third-party defendant's attorney:

Signature date:
February 28, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants bring a motion for partial summary judgment on the issue of liability pursuant


to Labor Law § 240(1). Defendant opposed the motion.

The verified claim served and filed alleges that on October 11, 2000, Claimant[1], John Tsaousis, was employed by Erie Painting & Maintenance, Inc. (hereinafter Erie). Erie was party to a contract with the State of New York for the construction, demolition, painting, cleaning, and/or repair of a State owned bridge on New York State 690 East at McBride Street in the City of Syracuse, County of Onondaga. The claim alleges that on that day, while in the course of his work, Claimant was seriously injured as a result of the State's failure to comply with New York Labor Law §§ 200, 240, 241, Title 12 of NYCRR and OSHA provisions by failing to provide Claimant with adequate safety devices and failing to provide a safe working environment. Claimant limits his motion for summary judgment to his Labor Law § 240(1) cause of action and bases it on the State's alleged failure to provide adequate fall protection for Claimant pursuant to the terms of the contract, as well as pursuant to the regulations set forth in Title 12 of the NYCRR and OSHA Part 1926. Also, as part of Claimant's motion, he asserts the State failed to provide required safety training and failed to provide proper illumination within the enclosed work platform. Labor Law § 240(1) imposes upon owners and contractors a nondelegable duty and absolute liability for failing to provide safety devices necessary to protect workers in elevated work sites from injuries caused by this failure (Jock v Fien, 80 NY2d 965, 967-968).

While there is little dispute that Labor Law § 240(1) applies, since Claimant was clearly involved in painting and cleaning of a structure, here a bridge, there are numerous factual questions which preclude a determination that the statute was violated - and if violated, was a proximate cause of Claimant's injury or whether Claimant's actions were the sole proximate cause of his injuries (Aton v Syracuse University, 24 AD3d 1315; Tronolone v Praxair, Inc., 22 AD3d 1031).

Summary judgment, as often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). The movants bear the burden of establishing their right to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557), specifically, that Defendant violated Labor Law § 240(1) and said violation was the proximate cause of the injuries (Cordeiro v Shalco Investments, 297 AD2d 486, 488; Zeitner v Herbmax Sharon Associates, 194 AD2d 414). It is not the place of the court, on a motion for summary judgment, to determine which worker's account is accurate (see Knepka v Tallman, 278 AD2d 811; Furlong v Storch, 132 AD2d 866, 868).

Here, Claimant acknowledges the inconsistent versions of whether he was wearing a harness at the time of his fall, but argues that the issue is unimportant as "no safety line was provided...for [Claimant's] use," (see Young affidavit p. 14 ¶82). Yet, this underscores the numerous factual issues which are central to the question of whether Labor Law § 240(1) was violated and proximately caused Claimant's fall. There are discrepancies between whether Claimant was provided with safety documentation, whether Claimant had been advised of the need to hook his lanyard to the center cable prior to his fall, whether Claimant hooked up before his fall, whether the center cable was a proper safety device pursuant to Labor Law § 240(1), the contract, Industrial Code and OSHA Standards; whether attachment to the safety line would have prevented Claimant's injuries, whether being attached to the cable precluded Claimant's ability to do his job, whether Claimant was told to leave his harness on the truck by Mr. Bahas, the president of Erie, and whether the Ultra Lift was part of a Class A containment system, thereby requiring DOT approval before use. With these issues unresolved, summary judgment cannot be granted (compare Fajardo v Trans World Equities Co., 286 AD2d 271).

Claimant has failed to establish his entitlement to judgment as a matter of law. The motion is DENIED.

February 28, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion.........................................................................................................1

Affidavit of John W. Young, Esquire, in support, sworn to June 29, 2005,

with exhibits attached thereto..........................................................................2


Memorandum of Law, in support................................................................................3


Affirmation of F. Douglas Novotny, Esquire, in opposition, with

exhibits attached thereto..................................................................................4


Affidavit of Markos Bahas, sworn to November 1, 2001, in opposition,

with exhibits attached thereto..........................................................................5


Affidavit of Michael Callanan, sworn to November 1, 2001, in opposition...............6


Affidavit of Mitchell Blum, sworn to September 2, 2005, in opposition....................7


Affidavit of James Schuler, sworn to November 24, 2001, in opposition

with exhibit attached thereto............................................................................8


Supplemental Affidavit of Markos Bahas, sworn to November 9, 2001,

in opposition,...................................................................................................9


Affidavit of Michael Callanan, sworn to September 2, 2005, in opposition.............10


Affidavit of John W. Young, Esquire, in response to opposition to motion for

summary judgment, sworn to September 27, 2005, with exhibits

attached thereto..............................................................................................11


Affidavit of John K. Hagopian, II, P.E., in support, sworn to

September 27, 2005.......................................................................................12


Reply Memorandum of Law in support.....................................................................13




[1]All references to Claimant herein shall be to the injured party, John Tsaousis, unless otherwise specified. The claim of Fay Tsaousis is derivative in nature.