New York State Court of Claims

New York State Court of Claims

SINGH v. THE STATE OF NEW YORK, #2006-036-575, Claim No. 109854, Motion No. M-72192


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:
SETH ZUKOFF, ESQ.By: Maloney & Letowsky, Trial Counsel
Defendant’s attorney:
By: John L. Belford, IV Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for partial summary judgment on the grounds that the State is absolutely liable under Labor Law § 240 (1) for injuries claimant suffered when a hydraulic jackhammer fell on him on August 12, 2003. Defendant opposes the motion, arguing that claimant was exposed to no more than general workplace hazards, rather than the risks contemplated under Labor Law § 240 (1), and that issues of fact regarding the specifics of the incident preclude summary judgment.[1] Claimant was injured while working for L&B Construction on a State-contracted job at the New York State Environmental Conservation Area in Ridge, New York. Claimant’s job was to clear the rubble in an open basement on the site of a burned-out fisheries barn situated below ground. A “Bobcat” with an attached jackhammer was positioned outside the basement at ground level. A trash barrel was rigged to the jackhammer with a rope, to be lowered into the basement for claimant to fill with debris and then to be raised. In the course of performing this work, the jackhammer became detached from the Bobcat and fell onto the claimant, striking him in the forehead and right eye, knocking him to the ground and landing on his back.

On a motion for summary judgment, the moving party must “establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor . . . and he must do so by tender of evidentiary proof in admissible form.” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-68 [1979], quoting CPLR 3212 [b].) The evidence must be viewed most favorably to the non-moving party, Crosland v New York City Transit Auth. (68 NY2d 165, 168 n.2 [1986]), and demonstrate the absence of any material issues of fact, Winegrad v New York Univ. Med. Center (64 NY2d 851, 853 [1985]).

Labor Law § 240 (1), entitled “Scaffolding and other devices for use of employees,” provides:
All contractors and owners and their agents, . . . who contract for but do not direct or control the work, 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.

To effectuate the legislative intent which places responsibility for worker safety with the owner and general contractor, a violation of the statute is deemed conclusive evidence of negligence. (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-21 [1985].) Two factors must be established: the circumstances must involve an elevation-related risk, as defined by the Court of Appeals in Rocovich v Consolidated Edison Co. (78 NY2d 509, 514 [1991]), that is, “those [risks] related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured (emphasis supplied); and the injury, if from a falling object, must be proximately caused by the failure to provide proper protection in the form of the kind of safety device set forth in the statute, e.g. a hoisting or securing device, or by providing one which is not adequate for the task. (E.g. Gabriel v Boldt Group, Inc., 8 AD3d 1058 [4th Dept 2004].) Where it is undisputed that no such device was provided to protect a worker from an elevation-related risk, liability may be established as a matter of law. (See Zimmer v Chemung County Performing Arts, supra.)
With regard to whether there is an elevation-related risk here, the uncontradicted evidence is as follows. The operator of the Bobcat, Gurnimel Singh (a co-worker, but no relation to claimant) furnished an affidavit that the basement floor (where claimant was working) was “about ten feet below ground level,” and that the jackhammer fell about 4-6 feet onto the claimant.[2] Salomon Hartz, an employee of defendant who was assigned to oversee the work, estimated at his deposition that the distance between the basement level and ground level was approximately 8-10 feet. He is a competent witness for this purpose, even though he did not see the accident itself.[3] And claimant’s affidavit states “a piece of the Bobcat . . . fell about 8-10 feet. . . . into the basement and struck me.”
Defendant first contends summary judgment cannot be granted without determining just how far the jackhammer fell before hitting the claimant in order to establish that this was an object falling from an elevated work site. If the fall was from a “minuscule” height – as defendant argues was the case here – it is not the type of elevation-related injury covered by § 240 (1), but is an ordinary workplace hazard.
Based on the evidence recounted above, the court would be hard pressed to find a more classic example of an elevation-related risk. Claimant’s task was to empty debris in an open basement located approximately eight to ten feet below ground. At any given time, an appreciable difference in height existed between the ground level elevation where the Bobcat was positioned (or above ground level when the Bobcat/jackhammer was in a raised position) to the below-ground basement level where claimant was working – even when claimant’s own height of 6-feet-1-inch is considered. There is no merit to defendant’s contention that summary judgment cannot be granted without establishing the exact elevation from which the jackhammer fell. Defendant has offered nothing to controvert the evidence estimating the depth of the basement as eight to ten feet below where the Bobcat was at ground level (cf. Gettys v Port Authority of New York and New Jersey, 248 AD2d 226 [1st Dept 1998] (dispute over distance of plaintiff’s fall not material since less than either claimed distance would constitute an elevation-related risk).
Neither the statute nor the case law construing it require a minimum elevation to impose liability unless the falling object that causes an injury is at the same level as the worker, in which case an elevation-related risk is not posed. (See Thompson v St. Charles Condominiums, 303 AD2d 152 [1st Dept 2003].) The cases defendant relies on do not involve “elevation-related” risks. In Schreiner v Cremosa Cheese Corp. (202 AD2d 657 [2nd Dept l994]), the court described the difference in elevation as “minuscule” where an unsecured pallet fell and struck plaintiff from a height which was four feet above the level of his feet, that is, with virtually no difference in elevation between plaintiff and the height from which the object fell. (See Rocovich v Consolidated Edison Co., supra, 78 NY2d 509, 514 [1991].) In Thompson v Ludovico, 246 AD2d 642 [2nd Dept 1998]), plaintiff was injured by a “usual and ordinary” danger when the boom on the crane plaintiff was working on slipped and injured him, again, without a difference in elevation; and in Carringi v International Paper Company (184 AD2d 137 [3d Dept 1992]), there was no elevation-related risk where a crane plaintiff was working on fell and struck him during ground-level assembly. None of these cases are like the facts here.
Defendant next argues there is a question of fact as to the position of the jackhammer when it fell, i.e. whether it was being used to hoist anything “at the moment” it detached.[4] If the jackhammer did not fall in the act of hoisting, but rather of its own accord, defendant asserts that absolute liability resulting from the absence or inadequacy of an enumerated safety device, i.e. a “hoist,” would not apply, and its detachment must be considered an ordinary workplace hazard. Defendant’s reliance on Narducci v Manhasset Bay Associates (96 NY2d 259 [2001]) is misplaced for the contention that §240 (1) would not be applicable if it turns out the jackhammer actually was not lifting or lowering anything, or the bucket being filled or emptied, at the precise moment it fell. In Narducci, plaintiff was struck by a large piece of glass which fell from a steel window frame adjacent to the one he was working on while standing on a ladder during a renovation. The court held § 240 (1) did not apply in that plaintiff failed to show the glass fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (citations omitted). There was no evidence that the adjacent window from which the glass fell was being, or had been, worked on during the project (see id., 96 NY2d at 268).
In contrast, claimant here testified at a deposition that the accident occurred 15-20 minutes after he began working, and Mr. Singh, the Bobcat operator, stated in his affidavit that the accident occurred “[a]fter raising out several buckets of building debris.”[5] This evidence demonstrates the accident occurred in the midst of doing this hoisting work, to wit, lowering, filling, raising and emptying a bucket to remove debris. Whether the jackhammer became dislodged while the arms of the Bobcat were being lowered or raised – or even momentarily in a stationary posture pending its next movement – is immaterial. To give § 240 (1) the tortured interpretation that defendant urges by isolating the precise moment of injury and ignoring the entire context of the work being performed is to defeat the salutary purpose of the statute, to wit, to protect workers engaged in elevation-related risks, which the Court of Appeals has said should be “construed as liberally as may be for the accomplishment of the purpose for which [the statute] was thus framed.” Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 520-521 [1985] (quoting Quigley v Thatcher, 207 NY 66, 68).
Outar v City of New York, 5 NY3d 731 [2005], affg 286 AD2d 671 [2d Dept 2001] is instructive in this regard. A New York City Transit Authority worker on the subway track level was lifting sections of track when an unsecured dolly, which was used in his work and was being stored on top of a 5½ foot high “bench wall” adjacent to the worksite, fell and struck him. The Court of Appeals affirmed summary judgment under § 240 (1) without regard to the fact that the dolly which fell was not the object being hoisted or secured. See also Orner v Port Authority of New York and New Jersey, 293 AD2d 517 [2d Dept 2002] (worker on ground floor of a construction project struck on head by unsecured roofing material fallen from the roof granted summary judgment even though object that struck him not then being hoisted); Cammon v City of New York (21 AD3d 196 [1st Dept 2005]) (court rejected contention that injury caused by a swinging load of timber which was not being hoisted at the time it fell was outside the scope of § 240 (1)); Sharp v Scandic Wall Limited Partnership, 306 AD2d 39 [1st Dept 2003] (after lowering an inoperable elevator into an elevator pit and removing hoist chains when it came to rest, worker injured when he remained standing on top of the cab and suddenly dropped another 30 feet because of unsound planking); Thompson v St. Charles Condominiums, supra (when bricklayers climbed onto an overloaded or undersupported scaffold it collapsed on plaintiff who was standing under it after he had placed cinder blocks on it); Oden v Chemung County Industrial Development Agency, 183 AD2d 998 [3d Dept 1992] (summary judgment granted without determining reason for fall of unsecured 20-foot column slated for demolition after catwalk had just been removed where the differences in elevation constituted a gravity-related risk).
Speculation by defendant that the jackhammer might not have fallen while actually being hoisted also is immaterial because what fell here was not a load that needed to be secured while being hoisted, but rather the “hoisting” mechanism itself. Where the purported safety device which fails is nothing more than jerry-rigged equipment, not constructed to give the proper protection of § 240 (1), a violation is established. Defendant submits no evidence that claimant was furnished with a safety device of the kind required by the statute. (See Berndt v Aquavello, 139 AD2d 920 [4th Dept 1988] (“the chainfall and rope tie were not safety devices intended to provide protection for the worker but were pieces of equipment used to install the stairway by lowering it into its proper place”); see also Cammon v City of New York, supra [1st Dept 2005] (“Since the sling provided was not an adequate safety device for the task plaintiff was performing . . . defendants are absolutely liable under section 240 (1)”); Gabriel v Boldt Group, Inc., 8 AD3d 1058 [4th Dept 2004] (“a defective hoist is itself a falling object when the hoist collapses while being used to lift an object”); Thompson v St. Charles Condominiums, supra, (“where a safety device has been furnished, and it collapses, a prima facie case of liability under Labor Law § 240 (1) is established”).
Finally, defendant seeks to raise what appears to be an issue of proximate cause. Defendant relies on the Narrative Report of the New York State Department of Environmental Conservation recounting its investigator’s interview with claimant where he recalled the falling jackhammer first hit his face and shoulder and then hit him a second time after “bouncing” off the basement wall. This, says defendant, raises a triable issue of fact about whether this second hit to claimant’s body falls within the strict liability provisions of Labor Law § 240 (1). To argue the chain of proximate cause from the vertically falling jackhammer somehow may be broken to defeat strict liability because the force of gravity also caused this extremely heavy machine to hit a wall and then strike claimant again – even if at a more lateral angle – borders on the ridiculous. Claimant’s injuries were the direct result of a jerry-rigged piece of construction equipment not functioning as a safety device required by the statute and falling down onto the claimant. That a below-ground wall also may have been hit at some point in the fall changes nothing. There can be no more clear-cut example of proximate cause.
To defeat summary judgment, defendant must present evidentiary facts which demonstrate factual issues exist before liability can be established. (See Drew v Correct Manufacturing Corporation, 149 AD2d 893 [3d Dept 1989].) No such facts are presented here.
Based on the foregoing, the court finds defendant is liable for violating Labor Law § 240 (1) as a matter of law and claimant’s motion for partial summary judgment with respect to this claim is granted.
December 29, 2006
New York, New York
Judge of the Court of Claims

[1].The court considered the notice of motion and attorney affirmation in support with exhibits consisting of the claim, defendant’s answer, claimant’s notice to admit, claimant’s verified bill of particulars and supplements thereto, the deposition testimony of Salomon Hartz, a non-party maintenance assistant employed by Department of Environmental Control at the job site where the accident occurred, claimant’s deposition transcript and his affidavit sworn to January 22, 2004, the deposition testimony of Rajinder Singh Bawa, claimant’s employer and the president of L&B Construction, the affidavit of Gurnimel Singh, a co-worker at the job site, and reports of New York State Department of Environmental Conservation Investigating Lt. Lapinski dated July 28, 2003 and November 5, 2003, as well as defendant’s affirmation in opposition and claimant’s attorney’s reply affirmation.
[2].Mr. Singh’s affidavit confirmed claimant’s description of the Bobcat/jackhammer trash barrel arrangement. The affidavit also contains uncontroverted statements that the jackhammer was very heavy and two men were needed to lift it. Mr. Singh added that, after the accident, he found the arms of the Bobcat which were supposed to secure the jackhammer were unlocked, and this was the reason the jackhammer assembly fell.
[3].Mr. Hartz also is a competent witness to have confirmed, as he did, the descriptions furnished by the claimant and by the Bobcat operator, Mr. Singh, of how the Bobcat/jackhammer and trash container were rigged.
[4].The verified claim (and bill of particulars) allege the jackhammer fell “[w]hile a load was being hoisted from the basement” (Claim, para. 3; Bill of Particulars, para. 4). But when claimant was asked at his deposition, “[W]hile you were collecting the garbage, were they lifting something up?” his answer was, “I don’t know. I was busy with the garbage and suddenly it fell on me.” (Claimant’s deposition, p 29, l 25; p 30, ll 2-4.)
[5].Claimant reportedly also estimated that the barrel had been lowered and raised ten or twelve times before the accident, according to a Department of Environmental Conservation Narrative Report of an interview with him.