New York State Court of Claims

New York State Court of Claims

BORYCHOWSKI v. THE STATE OF NEW YORK, #2007-016-047, Claim No. 109817


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):

Alan C. Marin
Claimant’s attorney:
Law Offices of Samuel J. Lurieby: Dennis A. Breen, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Mathew P. Ross, Esq., Debra A. Adler, Esq., and Samantha H. Better, Esq.
Third-party defendant’s attorney:

Signature date:
October 23, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the liability trial arising from the claim of Jozef Borychowski that he fell from a ladder while working on a construction project under a contract that the State of New York had with claimant’s employer, Tully/Pegno. Tully/Pegno was a joint venture of the Tully Construction Company and the A. J. Pegno Construction Corporation, and the project involved the resurfacing of the Whitestone Expressway in Queens and replacement of a bridge over the Flushing River. (See cl exhs 13 & 14; def exh E).

The Testimony of Claimant
Mr. Borychowski arrived at the job at about 6:30 a.m. on May 21, 2004, which was a Friday. He parked his car where he and the other workers usually did, in the “yard,” and waited for his assignment. Orlando Fernandes, the general foreman, came over to Mr. Borychowski and told him that he would be working on Wieslaw Kleczkowski’s crew. Claimant then rode to his work location in a van that was driven by Kleczkowski.

According to Borychowski, he was working on the demolition of an elevated road, and he used a ladder that was already in place to get up to the roadway. When he did so, claimant testified that no one else was working - - or supervising - - there. He testified that at about 2:30 p.m. he needed a shovel that was on the ground: “I went down . . . I did three step[s] on the ladder. The ladder went to the side, off to the side and I fell down.” Borychowski stated that no one saw the accident.

Claimant thought he may have been unconscious for a short period, but he remembers that at some point, Kleczkowski came over when he was sitting on the ground, and asked what had happened. Borychowski testified he told his foreman that he “fell down,” but Kleczkowski was “not interested . . . he left me . . . he went away.” On cross-examination, claimant added that Kleczkowski had just laughed and done nothing.

Claimant testified that after picking himself up, he went “a little bit on the road” and hailed a taxi. By this time, Kleczkowski had left the accident site. Asking the cab driver to take him to a hospital, Borychowski was taken to Woodhull Hospital, which is located in Brooklyn at 760 Broadway. Claimant testified that when he got to the hospital, he had to wait a “very long [time] . . . [m]aybe around 20 hours until they started to take care of me.”

But the Woodhull Hospital records tell a different story - - that Mr. Borychowski did not arrive until the following afternoon, Saturday, May 22. The Triage Form records him as being initially seen by a member of the hospital staff at 4:20 p.m., with the form signed by the triage nurse at 4:25, May 22. The Emergency Record provides that his condition was evaluated by a physician at 4:48 p.m., on May 22. (Def exh A). Claimant maintains that during this period of 20 or more hours “they put me on the bed, they gave me some pills to sleep . . .”

The Testimony of Robert Borychowski and Friend

Jozef Borychowski’s adult son, Robert, and a friend of Robert’s, Michael Nordt, took the stand as witnesses on claimant’s case. Robert Borychowski testified that he was called before three o’clock on Friday, May 21 by his father, who explained what had happened, and asked him to pick up his car and drive it home. Later that evening, Robert ran into Michael Nordt, who gave him a lift to College Point Avenue and 33rd Boulevard in Queens, where Robert retrieved his father’s car. This testimony did not add anything to the essential issue - - what happened to Jozef Borychowski at work on Friday, May 21, 2004.

The Testimony of Messrs. Fernandes, Kleczkowski and Elias
By the time of trial, Orlando Fernandes had worked for Tully/Pegno for three and a half years and before that for the Tully Construction Company. At Tully/Pegno, Mr. Fernandes was a general foreman, with the authority to divide the work force into smaller groups in the field under other foremen, such as Wieslaw Kleczkowski.

Tully/Pegno maintained records that included the daily hours worked for their employees (def exh B), and listed the type of work, location and equipment for each day of the Whitestone Expessway project (def exh C). Tully/Pegno did not have records to show the tasks each worker was assigned on a particular day.

Fernandes testified that he assigned the claimant to work with him and Kleczkowski on the morning of May 21 - - on the “Astoria approach . . . Astoria Boulevard.” The witness explained that Astoria Boulevard was elevated 20 feet above the ground, and that workers used ladders and manlifts to access it.

Fernandes recalled that some time between 9 and 10 a.m., he told Kleczkowski that he needed Borychowski at another location, and that Fernandes himself picked up Borychowski and drove him to a location where the task was to spread topsoil on the Whitestone Expressway median between the Linden Place and 20th Avenue exits. Fernandes did not remember if he had requested additional workers at the time, but did recall that Joao Agostenho had been already working the topsoil job since early in the morning. According to Fernandes, topsoil was delivered that day. See the May 21, 2004 entry in defendant’s exhibit C for median topsoil work.[1]

Fernandes indicated that employees are given no notice of an impending layoff until the end of their last day. He testified that he picked up Borychowski from the Expressway median work at about 3 or 3:15 p.m., brought him down to the field office by College Point Boulevard and handed claimant his layoff check. Fernandes recalled that he told claimant he was being laid off because “work was slowing down.”

On the same day, three other workers were laid off, including Richard Toczynski,[2] and his layoff was also handled personally by Fernandes. Fernandes never received any kind of notice of the accident - - and that includes hearing from the claimant when he drove him back to the office on Friday afternoon - - until commencement of this lawsuit.

As for the other Tully/Pegno employee with supervisory authority, Kleczkowski testified that he had been a foreman on the Whitestone Expressway project for four years, and prior to that, had been employed by Tully for thirteen years. Mr. Kleczkowski stated that on May 21, he drove claimant in a company van from the yard to his assignment - - clearing debris from the elevated roadway by Astoria Boulevard. The witness recalled that he also drove “Richie” (Toczynski) to the site to clear debris. Toczynski and claimant climbed up onto the roadway via a ladder that Kleczkowski had set up. There were another two workers in the van who did not work on the elevated road that day, but were assigned nearby; Kleczkowski had a less clear recollection of what these other two men did, although he did recall their names.

Between 9 and 10 a.m., Fernandes called Kleczkowski, told him that he needed workers at another location and came over to get claimant and Toczynski. He did not see Borychowski again that day. Kleczkowski remembers observing claimant climb down the ladder without difficulty; nor did claimant indicate to Kleczkowski that he had fallen that morning, and the foreman never saw a report to that effect.

John Elias, an employee of the State Department of Transportation, was the engineer in charge on the Whitestone Expressway job. Mr. Elias’ duties were to monitor the project’s progress, and ensure that the work was being performed in compliance with the contract plans and specifications. Daily reports on the entire project were generated by its fifteen inspectors. Elias had no knowledge of an accident befalling claimant on May 21 until this litigation began, and no record of such has turned up on an Inspector’s Daily Report. (See defendant’s exhibits D and E). His testimony is consistent with that of Fernandes and Kleczkowski as to general operational aspects of the project.

It should be noted that the last page of defendant’s exhibit E is a map of portions of the Whitestone Expressway and Astoria Boulevard with a handwritten notation, “accident location,” but no credible evidence obtains that this was entered as part of a contemporaneous reporting of the claimant’s accident.
Borychowski’s pleading was grounded on sections 200, 240 and 241.6 of the Labor Law. Liability under §200, the codification of the common law right to a safe workplace, will only attach to a defendant that exercises control or supervision over the job site. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816 (1998). Such control or supervision was not proven here, and this cause of action was dismissed on the record at trial, without claimant’s objection.

Under §240.1, commonly known as the scaffold law, a fall from an unsecured ladder that moves or slips establishes a prima facie case entitling claimant to judgment, which can be rebutted by a showing that claimant’s conduct was the sole proximate cause of the accident.[3] That a worker’s fall is unwitnessed does not affect such presumption. Klein v City of New York, 89 NY2d 833, 652 NYS2d 723 (1996).

Section 241.6 of the Labor Law subjects the owner of a construction site, irrespective of whether it exercises control or supervision, to liability for the negligent failure to “provide reasonable and adequate protection and safety” to the workers on the job.[4] In order to establish liability under this section, there must be a violation of a rule promulgated by the Commissioner of Labor that sets forth a specific safety standard.[5] Rule 23-1.21 applies to the safe use of ladders.

With that said, to prevail on a §240.1 or §241.6 cause of action, a claimant must, of course, prove the necessary predicate facts by a fair preponderance of the credible evidence. To this trier of fact, Mr. Borychowski has failed to do so. Fernandes and Kleczkowski were both credible in testifying that claimant was, in fact, engaged in spreading topsoil on a highway at ground level when claimant said he had fallen from the ladder leaning against an elevated roadway.

Moreover, significant in diminishing Borychowski’s credibility were the medical records that showed he did not arrive at Woodhull Hospital until the next day, which was at variance with claimant’s testimony that he took a taxi to that hospital the afternoon of his injury (def exh A). There were a number of other aspects to claimant’s testimony that came across as less than credible, including for example: Borychowski’s representation that he had no co-workers with him on the job; that he worked on the elevated roadway from early in the morning without coming down for a break until 2:30 p.m.; claimant’s description of the way in which equipment and tools were brought up to the elevated work area; and whether he was told that he was laid off May 21, effective immediately.[6]
In sum, claimant has not met his burden of proving that he was subject to an accident or mishap involving a ladder. In view of the foregoing, the claim of Jozef Borychowski (no. 109817) is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

October 23, 2007
New York, New York

Judge of the Court of Claims

[1]. No location is given for the May 21 topsoil work in this log; note that Fernandes thought that it was about two thousand feet from Linden Place to 20th Avenue.

[2]. “Toczynski” is the spelling in the Tully/Pegno records; see for example, claimant’s exhibit 9. The transcript spells it otherwise.
[3]. 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); and Velasco v Green-Wood Cemetery, 8 AD3d 88, 779 NYS2d 459 (1st Dept 2004).
[4]. Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978).
[5]. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993).

[6]. Defendant had sought the introduction of claimant’s August 13, 2004 testimony pursuant to General Municipal Law §50-h, which was admitted into evidence with the understanding that counsel would have the opportunity to address its admissibility (def exh G). In view of the discussion above, it is unnecessary to consider the admissibility of defendant’s exhibit G; the Court did not in any way rely upon exhibit G in deciding this matter. Thus it becomes moot whether claimant’s correction sheet to the 50-h transcript was timely submitted (cl exh 12).