New York State Court of Claims

New York State Court of Claims

BODNARCHUK v. THE STATE OF NEW YORK, #2006-029-617, Claim No. 103799


State not liable for injuries sustained by worker when he fell through a grating that was being used to enter and exit a State building through the window.

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):

Claimant’s attorney:
EFROM J. GROSS, ESQ.By: Gary A. Lichtman, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries sustained while working on an asbestos removal project at Helen Hayes Hospital, a State facility. The trial was bifurcated and only the issue of liability will be determined herein.

Claimant, who had been an asbestos worker since 1997, was employed by Asbestway Corporation and on the date in question, November 20, 2000, was engaged in removing asbestos tile from the floor of a men’s locker room at the hospital. He was part of a six-person crew, under the supervision of Marian Jendras, whom he described as the supervisor, and Jan Kilch, the foreman. There was also an unidentified “inspector” involved, who was not an Asbestway employee (Vol I, 69).

Claimant testified that they arrived at about 9 a.m., unloaded their tools and equipment from their truck and proceeded to bring their gear into the building “by how we were instructed, through the window” (id., 71). The window is shown on Exhibits “U” (from the outside) and “KK” (from the inside). Outside, there is a metal grate bounded by a concrete curb below the window. It took about 30-40 minutes to unload the equipment from the truck and bring it inside through the window, during which time claimant and other workers walked and stood on the grate. They then went inside and started building two decontamination chambers, known in the trade as “decons.” A “personal decon” (which the workers used to enter and exit the work area) was built in the hallway and a “waste decon” (used to cleanse and bag the contaminated waste and remove it from the work area) was built in the shower room (id., 79)

At about 2 p.m., claimant stated, the inspector gave him permission to start removing the tile. Claimant put on a mask and suit and began removing the tiles from the floor with other workers. After about 20 minutes, Jendras told him to change into his personal clothes and begin taking the materials and tools they no longer needed back to the truck. The materials were removed from the shower room through the window shown on the photographs, loaded into a cart and taken to the truck. Jendras was putting the materials on the windowsill and claimant was taking them from there and placing them in the cart. While doing this, claimant was standing and walking on the metal grate in front of the window. After approximately a half hour to an hour, the other workers started bringing the bags of waste materials (the tiles), some of which weighed up to 30 pounds, out through the window and claimant began taking the bags and placing them in the cart. At some point, as Jendras was handing claimant some paperwork through the window, the grate collapsed and claimant fell about ten feet into the ventilation space below the window.

On cross-examination, claimant was asked who told him to remove the materials, tools and tiles using the window. He responded by stating that when he arrived at the hospital he saw someone, who said he was from the hospital, speaking to Jendras, but he did not pay attention to the substance of the conversation.
Claimant also testified that the grate looked stable – it did not shake or wobble when he stepped on it, and he had no indication that there might be a problem with the grate supporting him.

Martin Jendras testified that when he arrived at Helen Hayes that morning he was greeted by the project inspector and had a conversation, but he could not recall the person’s name or the subject of the conversation. He remembered that there was a female inspector who supervised him and he in turn gave instructions to the workers. He agreed with claimant that the window in question was used to bring material into, and bags of tiles out of, the premises but could not recall if they were ever told by anyone to use, or not to use, the window in that manner. He stated that he stepped on the grating more than once during the course of the day and did not notice any instability.

On cross-examination, Jendras could not remember if the female supervisor told him that the workers could use the window to bring materials in and out of the premises but he stated that he “quite possibly” told the workers they could use the window (Vol III, 230). Jendras advised that he remembered walking over the grate “many times” during the day and, asked if he inspected it, he replied “I don’t remember if I did it personally or one of the workers probably stomped on it several times with his feet. I don’t remember” (id., 231).

Mendy Gorodetsky, the President of Asbestway in 2000, testified that his firm was a subcontractor on the job. The main contractor was Parker Environmental. He could not recall if anyone from Parker Environmental gave any instructions as to how to remove the waste material from the hospital building.

Lech Litka was one of claimant’s coworkers. Asked how the workers brought their material into the building, he stated “the way which the worker, the hospital worker showed us, through the window” (Vol I, 47). It took 30 minutes to an hour to bring all the material in, during which time all of the workers were involved. He estimated he stepped on the grate 30-40 times. Litka indicated that he stood on the grating outside the window the entire time. When it came time to remove the bagged tiles from the premises, Litka’s role was to take the bags from the worker who had washed them in the waste decon and give them to Jendras who in turn handed them through the window to claimant. It was about three feet from the opening of the decon to the window.

John Soter was a vice-president of Adelaide Associates, a firm engaged in asbestos consulting work. They were responsible for overseeing the work being performed by Asbestway at Helen Hayes Hospital. Soter testified that he was present at the hospital on the date in question from 8 a.m. to about 12:30 p.m. and that after he left, his employee, Donna Conley, took over monitoring the project. Their role was to “insure that the work practices were being done according to the State laws [and to] [m]ake sure containment was not breached” (id., 29).

Soter identified his firm’s file for the Helen Hayes job - “Project Monitoring and Air Sampling During Asbestos Removal” (Exhibit “7”) – which describes their monitoring of the work and the air quality. On page 1 of the Daily Monitoring Log, part of the file, Ms. Conley wrote, at 5:01 p.m.: “Worker falls outside window – injures leg. Abatement continues. Ambulance coming (Lyubomyr Bodnachuk [sic]). Grate not screwed down or covered. Worker stepped on one side and fell down 8 – 10́ in hole” (id.). At 5:43 p.m., she wrote: “Several workers observed going out window instead of thru decon unit” (id.).

Asked if he recalled whether “transfer of materials was done through a window opening,” Soter responded that it was not done while he was there. He stated he did not tell any worker to use the window to remove material, that his job was not to instruct the workers on how to do their jobs, but only to tell them when they were doing something “not appropriate” (Vol I, 37).

The transcript of Donna Conley’s deposition was submitted in lieu of her testimony at trial (Exhibit “1”). She indicated that the decons are supposed to be “attached to the only place that you decide you’re going to go in or out of, so that you must go in or out of the decontamination unit” (id., 11). She also stated that she checked all of the windows in the area where the abatement was going to be taking place and all were sealed.

Conley testified that proper procedures were not followed on the Helen Hayes job. At one point, she observed a worker coming from the work area without going through the decon and tried to tell him that such was improper, but he did not speak English. She warned the supervisor that she would stop the job if the workers did not use the decons as they were intended. Later in the day, she saw the same worker doing the same thing, talking excitedly on a cell phone, so she followed him and saw that claimant had fallen through the grate. When she got to the scene, she saw that “[t]he plastic had been removed from the window” (id., 19). She explained that all of the windows in the abatement area were supposed to have been sealed with plastic, including the window in question, “or we could not have started abatement” (id., 23).

After claimant was removed from the scene, “the window was resealed, the decontamination chamber was locked up and it was about 9:00 p.m. that we exited the facility then, with the negative air units again in place, to be sure that everything was being filtered properly” (id., 22). Conley claimed that she was not aware that the window had been unsealed until after claimant’s accident and that she had not seen any workers exiting through the window or handing materials through the window. Her opinion was that “the window was open to remove bags of asbestos to the truck which was outside, taking a shortcut, not going through the decon unit and around the building” (id., 52).

Conley stated that the only thing that could be done, once it was realized that the containment of the work area had been breached, was to reseal the window and test the air outside of the window for evidence of contamination. She denied that such an event would necessarily have resulted in an indication in the project records that the containment had been breached. Because the breach was to the outside air, “there would have been no special paperwork or anything else” (id., 43).

Carmine Sassano, an employee of the State’s Office of General Services, was the engineer-in-charge of the project. He stated that it was his understanding that “[t]he whole locker room area there is basically sealed off and there’s only one way in or out, that’s through the decon chamber” (Vol II, 132). Sassano left the site at 3:30 that afternoon, prior to claimant’s accident. He testified that he was not aware that the window was being used either to bring materials into the building or take the bags of waste out and that he did not become aware that was being done until the next day when he “was told that they were taking materials out of that window” (id., 143), and he claimed that when he gave instructions on how the waste was to be removed, “we pretty much laid out where the decon unit was and how they were going to get the material from the decon unit to the truck, which was down the hallway, in an elevator and out to the loading dock” (id.). This discussion took place at a pre-construction meeting that probably took place a few weeks before the work started. His understanding was that removal of materials through the window was neither permitted nor contemplated. He also stated that the workers were not supposed to use the window to bring in their tools, observing that “[n]ormally stuff goes through doors not windows” (id., 145). Sassone had no actual knowledge of what was told to the workers since he was not involved in those discussions.

John DiGirolomo was the Director of Facilities Management at Helen Hayes from 1996 through 2001. He was responsible for the maintenance of the physical plant, including grounds maintenance and safety. He did not know when the grate at issue herein was installed but his guess was that it was part of the original construction of the hospital. He was not aware of any prior incident involving the grate or of any complaints that bolts had been removed from the grate. He did not meet with the contractors on the asbestos removal project nor did he give any instructions to the workers.

Harlan Fair, a licensed professional engineer, testified on behalf of defendant. He visited the hospital on December 7, 2005, some five years after claimant’s accident, and measured the opening below the window as about 48 by 48 inches, bounded by a concrete curb, with “a two inch by two inch angle leg which is secured against that concrete curb on the . . . inside” (Vol III, 312). When he was there, the grate was bolted to the angle iron, but he speculated that had the grate not been bolted on, people walking on it could cause it to shift off of the iron and fall in: “It was because of the people being on it and moved it and then it fell in on Mr. Bodnarchuk” (id., 313).

Fair’s opinion was that the State did not fail to provide a safe place to work. This opinion was based on his conclusion that the work site was planned so that the workers would bring the bags of waste material from the decon to the truck using the hallway, elevator and loading dock door, not the window. His conclusion was also based on Conley’s and Sassone’s testimony that the workers were not supposed to use the window to enter or exit the building or to bring the bags of contaminated material outside but that it was supposed to be sealed as part of the decontamination process.

Claimant advances three separately-stated theories of liability – Labor Law § 200, common-law negligence and res ipsa loquitur – all three of which arise from defendant’s duty as a landowner and all of which essentially amount to the same thing, since the statute is merely a codification of the common-law duty, and res ipsa does not implicate liability distinct from negligence but is simply an alternative way of proving negligence. The applicable standard in this area is clear:
“Labor Law § 200 codifies the common-law duty of an owner or employer to provide employees a safe work place (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Russin v Picciano & Son, 54 NY2d 311, 316- 317 [1981]; Everitt v Nozkowski, 285 AD2d 442, 443 [2001]). This provision applies to owners, contractors, or their agents, who "have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Picciano & Son, supra at 317; see Rizzuto v Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lombardi v Stout, 80 NY2d 290, 295 [1992]; Kerins v Vassar Coll., 293 AD2d 514, 515 [2002]). In order for liability to attach under Labor Law § 200 or under a theory of common-law negligence, an owner or contractor must have created or had have actual or constructive notice of the defective condition which caused the accident (see Maggi v Innovax Methods Group Co., 250 AD2d 576, 578 [1998]).”
(Paladino v Society of New York Hosp., 307 AD2d 343, 344-345 [2d Dept 2003]; see also Salinas v Braney Skanska Constr. Co , 2 AD3d 619 [2d Dept 2003]; Shipkoski v Watch Case Factory Assocs., 292 AD2d 589 [2d Dept 2002]; Akins v Baker, 247 AD2d 562 [2d Dept 1998]; Zalduondo v City of New York, 141 AD2d 816 [2d Dept 1988]).

Here, the claim of State liability can be viewed in either of two ways: that defendant was aware of, and responsible for, the unsafe and improper method being used to take materials into and out of the building (i.e., using a window instead of a door) and that defendant was negligent because it maintained its property in an unsafe condition and did not provide a safe place to work.

With respect to the former contention “[i]t is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law” (Lombardi v Stout, 80 NY2d 290, 295 [1992]; see also DeBlase v Herbert Constr. Co., 5 AD3d 624 [2d Dept 2004]). Claimant’s action against the general contractor and Adelaide, asserting liability for the subject accident pursuant to Labor Law § 200, was dismissed on summary judgment, with the court noting that neither entity supervised or controlled claimant, and finding that “ ‘[t]he accident here was caused by the manner in which the plaintiff was instructed to perform his work by the subcontractor, his employer’ ” Bodnarchuk v Adelaide Assoc.,; Sup Ct Kings Co, Hubsher, J.; Index No 18240/02; decision dated October 14, 2004, quoting Benefield v Halmar Corp., 264 AD2d 794 [1999] (Court Exhibit “2”). Although the parties herein disputed the collateral estoppel effect of that decision on this case, the court has no need to even address the issue since this court’s conclusion as to the cause of the accident, based on the record at this trial, is the same. Whether any State representative supervised or controlled claimant was not at issue in supreme court; nevertheless, there was no proof herein that any representative of the State told any supervisor or worker to access the building using the window instead of a door, or that any State representative had knowledge that such was being done or the authority to direct the workers on how to do their jobs.

Regardless, claimant urges that it was the condition of the premises themselves that were unsafe, that the State created the dangerous condition and that it was foreseeable that an accident would occur. The court finds that claimant’s contentions are not supported by the evidence.

Claimant’s argument is based on the notation in the project log, written by Ms. Conley, that the grate was not screwed down and the testimony from Mr. Fair that the grate was designed to be held down by screws and that the absence of screws could enable the grate to shift off the angle irons and fall into the hole. Fair’s explanation was plausible, but it does not address what would have caused the screws to be absent. Claimant argues that the most likely explanation is that some State employee removed the screws at some unidentified time prior to the accident, contending that such a scenario is more likely than an unknown person vandalizing the grate and removing the screws. In making this argument, claimant ignores the explanation that, based on the record at this trial, is much more likely to have been the cause of the grate’s collapse; i.e., that the use of the grate as access to the building throughout the course of the day, involving heavy usage by workers standing and walking over it, caused the screws to work loose which ultimately led to the grate shifting and falling in. There was absolutely no proof that the screws were missing at the start of the day. Indeed, if such were the case, it would seem more likely that the grate would have failed earlier given the heavy usage to which it was subjected.

As claimant notes, his burden is only to show that it is more likely than not that the State was responsible for the missing screws. “The law does not require that plaintiff’s proof ‘positively exclude every other possible cause’ of the accident but defendant's negligence . . . . Rather, her proof must render those other causes sufficiently ‘remote’ or ‘technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” (Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 744 [1986], citations omitted). Here, the “other” possible cause – that the screws were worked loose by the workers standing and walking on the grate all day – is not at all remote but in fact is much more plausible than that the grate was either not properly installed in the first place
or that the screws were removed by a State employee. Based on this record, any finding that the State created a dangerous condition would be unwarranted.

Similarly, there was no proof of any notice to the State of any defect in the grate – specifically, missing screws – nor was there any proof from which it could be concluded that it was reasonably foreseeable that people would use the window as an entrance and exit. Claimant argues that a conclusion that an accident was foreseeable does not require a finding that a defendant was able to anticipate the exact circumstances of the accident but merely that it was foreseeable that someone could be injured in some manner, and that regardless of how claimant happened to find himself on the grate, “[t]he State’s obligation to have the grate secure is for the general public; it is an obligation to anyone who could find himself on that grating” (Claimant’s Post-Trial Memorandum, 17). Claimant noted that there is a basketball court near the grate and that it is foreseeable that a person could walk on it on occasion.

The flaw in claimant’s formulation is that the proof at this trial indicated that workers traversed the grating all morning, and all afternoon, without incident. While claimant contends that a grate which cannot support an average human being is a hidden trap, this grate did in fact support workers carrying tools and bags of debris all day. A hidden trap would have collapsed much earlier in the day. Indeed, given the heavy traffic to which the grate was subjected throughout the day, the only logical inference supported by the record is that it was the actions of the workers that caused the screws to come loose and the grate to fail.

To the extent that one could argue that screws are not supposed to behave in this manner – that they are supposed to hold regardless of being walked on all day – and that the grate was therefore inherently unsafe, there would still be no basis for finding that the State should have been aware of any inherent problem. Fair testified that the screws – which were present when he inspected the grate – were very difficult to see. Although claimant argues that defendant should be charged with the duty to inspect, there was no indication that any reasonable inspection would have revealed that the screws were at risk of failing (see Kennedy v McKay, 86 AD2d 597 [2d Dept 1982]; Monroe v City of New York, 67 AD2d 89 [2d Dept 1979].

Finally, the court rejects claimant’s contention that this is a res ipsa case. That doctrine permits the court to make an inference of negligence “upon the theory that ‘certain occurrences contain within themselves a sufficient basis for an inference of negligence’” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986], quoting Foltis, Inc. v City of New York, 287 NY 108, 116 [1941]) and may be applied where the incident (1) is of a kind which ordinarily does not occur in the absence of someone’s negligence, (2) is caused by an agency or instrumentality within the exclusive control of the defendant, and (3) is not due to any voluntary action or contribution on the part of the plaintiff (Dermatossian v New York City Tr. Auth., supra, 67 NY2d 219, 226). In addition to failing to demonstrate exclusive control, since the grate in question was accessible to anyone on the hospital premises, the court cannot find that this incident was one that was necessarily caused by defendant’s negligence. Indeed, the court has specifically found that the incident was most likely caused by the actions of the asbestos workers in using the window, and therefore, the grate for a purpose for which it was not intended; i.e., heavy traffic by workers carrying tools, equipment and heavy bags of debris.

As the Court of Appeals explained in Kambat v St. Francis Hosp. (89 NY2d 489, 494-495 [1997]:
To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that ‘it is more likely than not’ that the injury was caused by defendant's negligence (Restatement [Second] of Torts § 328 D, comment e). Stated otherwise, all that is required is that the likelihood of other possible causes of the injury ‘be so reduced that the greater probability lies at defendant's door’ (2 Harper and James, Torts § 19.7, at 1086). Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts § 40, at 257 [5th ed]), and it is appropriately charged when, “upon ‘a commonsense appraisal of the probative value’ of the circumstantial evidence, ... [the] inference of negligence is justified.”

Here, the proof indicates that it is more likely than not that the accident was not caused by any negligence on the part of defendant, but rather by the actions of the workers in using the window as access to the building instead of using the safe route of access that was provided; i.e., the hallway, elevator and doors. Based upon this record, any inference of State negligence is not warranted.

Accordingly, the court finds that claimant has failed to sustain his burden of proof and the claim must be, and hereby is, dismissed for the reasons stated. Let judgment be entered accordingly.

January 8, 2007
White Plains, New York

Judge of the Court of Claims

[1].Claimant testified with the aid of an interpreter. He stated that he understands English “a little bit” (Vol I, 99).
[2].Although claimant argued in his post-trial submission that “the State failed to have a grate of the proper size that would properly fit rather than move,” (Claimant’s Post-Trial Memorandum, 21) this contention – in particular the word “proper” – was not addressed by any of the witnesses and has absolutely no support in the record. There was no testimony addressing the proper size of a grate relative to the opening and there is certainly no basis for the court to infer that the installation of this grate somehow violated applicable standards. All that Fair testified to in this regard was that the grate was smaller than the opening and that it therefore had to be secured in order to be safe.