New York State Court of Claims

New York State Court of Claims



Defendants are liable under Labor Law § 240(1) for injuries suffered by a worker who was struck by metal “shebolts” that fell from a higher level on a scaffold. The cylindrical, metal objects were not being used at the time and had been allowed to remain, unsecured, on the platform without any structure such as a toeboard

Case Information

1 1.The State of New York is the owner of the property on which Claimant’s accident occurred. The New York State Canal Corp., a subsidiary of the New York State Thruway Authority, is responsible for the management, operation, maintenance and repair of the property.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The State of New York is the owner of the property on which Claimant’s accident occurred. The New York State Canal Corp., a subsidiary of the New York State Thruway Authority, is responsible for the management, operation, maintenance and repair of the property.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
BY: TAYLOR & ASSOCIATESBY: David R. Taylor, Esq.
Third-party defendant’s attorney:

Signature date:
October 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants’ motion for summary judgment in their favor and on Defendants’ Cross Motion to dismiss certain causes of action:

  1. Notice of Motion and Supporting Affidavit of Keith J. Starlin, Esq, with annexed Exhibits, Affidavit of David M. Diamond, Affidavit of Irving Paris, and Memorandum of Law
  1. Notice of Cross Motion and Affidavit in Support and Opposition of David R. Taylor, Esq., with annexed Exhibit and Memorandum of Law
  1. Reply Affidavit of Keith J. Starlin, Esq., with annexed Exhibit, Reply Affidavit of Irving Paris, and Reply Memorandum of Law
Filed papers: Claim

This claim arose on February 11, 2002, at approximately 6:20 p.m., on Lock E-2 of the Erie Canal in the Town of Waterford. Claimant David Diamond[2] was working on a rehabilitation project on the lock when, while standing on a scaffold, he was struck by two metal “shebolts” falling from a higher level on the scaffold. The Claim asserts causes of action based on sections 200, 240(1), and 241(6) of the Labor Law.[3]

At the time of the accident, Claimant was employed by Kubricky Construction Corp., the general contractor on the rehabilitation project. According to his affidavit and deposition testimony (Starlin affidavit, Exhibit C), the scaffold on which Claimant was standing consisted of three levels, each approximately 12 feet high and comprised of a six-foot wide platform. Workers traveled from one level of the scaffold to another by climbing up or down ladders, made by nailing 2 x 4s to the scaffold. These ladders were positioned in the middle of each level and there was an open area in each platform large enough for the workers to climb through. Claimant was on the third level[4] while some of his coworkers were on the top level using an air hose. According to Claimant, “as they pulled the air hose along it hit the shebolts and started them rolling towards the open interior area where the ladders were” (Diamond affidavit, ¶6). Claimant, who had bent over into the ladder area to pick up a tool, was struck on the head and shoulder area by two falling shebolts.

These shebolts were 24 inches long, 1 ½ inches in diameter, and cylindrical in shape. Made of metal, they weighed 25 to 30 pounds each. They were used in attaching concrete panels along the walls of the lock, specifically they held metal rods in place until the epoxy in which the rods had been set hardened. Once the epoxy was hard, the shebolts would be removed and set aside until needed again; they do not become a permanent part of the wall. Claimant asserts that following their use, the shebolts were allowed to simply remain – unsecured and capable of rolling and/or sliding – on the platform of the scaffold. When pushed by the air hose, they moved to the opening created for the ladder and fell on top of Claimant. The injury could have been prevented, Claimant contends, by placing toeboards, constructed from 2x4s, around the edges of the opening, noting that toeboards were placed on all outer edges of the scaffold in order to keep unsecured material from falling off the edge of the platforms. Claimant also suggests that there were a number of other safety devices – such as braces, stays, ropes, guarding planks, netting, mesh screening, or crates – that could have been used to protect workers below from falling shebolts or other unsecured material (Diamond affidavit, ¶14).

In support of the motion, Claimants have also submitted the affidavit of Irving Paris, a licensed architect. He states that when unsecured, moveable material or equipment is lying on a flat surface at an elevated level “[s]afety equipment such as braces, stays and ropes are required to secure or brace” such equipment or materials, in order to stabilize them and prevent them from falling. This is particularly important, he emphasizes, to secure or brace equipment such as these shebolts “since they are cylindrical, and thus, their very nature predisposes them to rolling along surfaces such as the scaffold platform” (id. ¶19). The fact that they are heavy, metal objects makes such precautions all the more important because, if they fall, they are capable of inflicting extremely serious injuries. A number of safety devices would have served the purpose: toeboards, planking or wire mesh around the edges of the open ladder area or something as simple as crates into which the shebolts could be put when not in use. This particular type of injury was foreseeable, Paris states, because the work being performed required that shebolts be used at each level of the scaffold and each of those levels had a large, open area for the ladder.

Claimants now move for summary judgment in their favor on the cause of action brought pursuant to section 240(1) of the Labor Law, frequently referred to as the “scaffold law.”
Labor Law § 240 (1) provides:
All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
In Blake v Neighborhood Hous. Servs. of New York City, Inc. (1 NY3d 280, 287), the Court of Appeals reviewed the history and purposes of Labor Law § 240 (1) and reaffirmed the rule that the fact that a worker suffered an elevation-related accident does not, alone, establish that there was a violation of the statute, and for there to be such absolute liability, it must be determined that the statute itself has been violated and that that violation was a proximate cause of the injuries for which recovery is sought.

Labor Law § 240 (1) applies only to those hazards "related to the effects of gravity where protective devices are called for ... because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The Third Department has interpreted Rocovich and its progeny to limit the statute's reach to such specific gravity-related accidents as falling from a height or being struck by a falling object (see Moutray v Baron, 244 AD2d 618 [3d Dept 1997], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; White v Sperry Supply & Warehouse, 225 AD2d 130, 132 [3d Dept 1996]).

In the instant case, Defendants’ liability is premised on the contention that they violated Labor Law §240(1) by failing to provide any safety equipment that would secure the shebolts and/or prevent them from rolling around on the platform and possibly falling through the ladder opening (Starlin affidavit, ¶ 30). Claimant submits that there are no issues of material fact that need to be decided in this case and that Outar v City of New York (286 AD2d 671 [2001], affd 5 NY3d 731 [2005]) is controlling on the law. Defendants argue that Labor Law §240(1) is inapplicable in this situation because the shebolts were not being raised or lowered when the accident occurred. Primary reliance is placed by Defendants on an earlier Court of Appeals decision, Narducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]) and the Third Department’s decision in McLaughlin v Malone & Tate Builders (13 AD3d 859 [2004]).

The facts of Outar are set out most fully in the decision of the Appellate Division, Second Department. The plaintiff, while working on subway track, was struck by a dolly that was not in use at the time and stored on top of a bench wall, 5 ½ feet high, adjacent to the work site. The trial court had denied summary judgment and dismissed the cause of action on the ground that the height differential was not sufficient to invoke section 240(1) of the Labor Law, but the Second Department reversed, holding that the height differential was sufficient to implicate the special protections of the statute and that because “defendant did not assert that the dolly was secured prior to the accident,” the plaintiff was entitled to summary judgment in his favor. The Court of Appeals agreed:
The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240(1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking (cf Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

( 5 NY3d 731.)

Narducci (supra) – which, interestingly, was cited by the Court of Appeals as giving general support for its decision in Outar and is cited by Defendants as weighing against Claimant’s recovery, combined two separate cases. In the first, the injured plantiff was removing steel window frames as part of a restoration project when he was cut by a large piece of glass that fell toward him from an adjacent window frame. In the second, an electrician who was installing fluorescent light fixtures into a dropped ceiling grid was injured when one of the fixtures he was installing fell from the grid before it was fully secured. His hand and wrist were cut as he reached out and tried to hold it, but he also did not fall from his ladder. The Court of Appeals concluded that neither situation qualified for the absolute liability of Labor Law §240(1), holding that, in the first instance, “the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell” and, with respect to the second, that there was no height differential involved, since the worker was at ceiling height when the injury occurred.

Neither of these situations is comparable to the instant claim, however, where the shebolts were material that “required securing” for the purpose of the work being performed and they fell from twelve feet above the platform on which Claimant was standing. A more comparable situation is presented in McLaughlin v Malone & Tate Builders, Inc. (13 AD3d 859, supra). There, one of the masons working on a construction project was standing on the third level of a scaffold when he was struck by two concrete blocks that fell from the level above. The blocks were being unloaded from a pallet and arranged in short stacks around the edge of the scaffold for use by the masons. Apparently, one of the laborers tripped and fell, striking a stack of blocks.

Although the situations are similar, in that a worker on a lower level was struck from above by equipment or materials that were being used in connection with the work being performed, there is a very critical and central distinction. The blocks being stacked in McLaughlin were intentionally put at that location in order to be used at the time of the incident or shortly thereafter. Moreover, because of their weight and shape, they would not have moved without the unforeseeable event of the laborer losing his balance. In contrast, the shebolts in the instant case, like the dolly in Outar, were not in use at the time the accident happened, and by their weight and shape, it was probable that they would move easily and cause serious injury if they struck someone. The question, as it was expressed in Narducci, is whether the equipment or material that caused the injury is a “ load that required securing for the purposes of the undertaking at the time it fell.” At the time the concrete blocks fell in McLaughlin, they did not require securing, because they were needed in that location, and needed to be unsecured, in order to allow the planned work to take place. In contrast, neither the dolly in Outar nor the shebolts involved in this case were in use at the time, nor were they to be used in the immediate future. The only impact they could have had on the work being performed was to interfere with it if they were left loose and unsecured.

The rule governing summary judgment is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and such showing must be made "by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062 [1993], 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The facts giving rise to this claim are straightforward, and they are not in dispute. Nor is the legal conclusion to be drawn from those facts in dispute. The shebolts that struck Claimant were objects that could forseeably fall through the unprotected opening in the scaffold platforms, that had been created for the ladder, and they were not objects that were needed immediately for the work being performed, thus were objects that “required securing for the purposes of the undertaking" (Narducci v Manhasset Bay Assoc. 96 NY2d at 268, supra). Because Defendants failed to either secure the shebolts or prevent them from falling, the Court finds that they were in violation of Labor Law §240(1) and that that violation was a proximate cause of Claimant’s injuries. Consequently, Defendants are liable to Claimants for their injuries.[5]

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.

October 23, 2006
Albany, New York

Judge of the Court of Claims

[2]. The claim of Michele Diamond is derivative in nature and, unless otherwise indicated or required by context, the singular term “Claimant” shall refer to David M. Diamond.

[3]. The Claim in this action was filed pursuant to permission granted on Claimants’ application to late file (Court of Claims Act §10[6]) (Diamond v the State of New York, New York State Thruway Authority and the New York State Canal Corporation, UID #2004-028-514, Claim No. NONE, Motion No. M-67499 [Ct Cl 2004], Sise, J.)

[4]. Although there were only three levels to the scaffold and it is evident that Claimant was standing on the middle one, he describes his location as “third” level, apparently counting ground level as the “first” level.
[5].In light of this ruling, Defendant’s cross-motion to dismiss the cause of action based on Labor Law § 240 is denied.