BORYCHOWSKI v. THE STATE OF NEW YORK, #2007-016-047, Claim No. 109817
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Law Offices of Samuel J. Lurieby: Dennis A. Breen, Esq.
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.
October 23, 2007
See also (multicaptioned
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
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
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
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.
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
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
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
claimant to judgment, which can be rebutted by a showing that claimant’s
conduct was the sole proximate cause of the
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.
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
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
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.
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
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
. 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.
. “Toczynski” is the spelling in
the Tully/Pegno records; see for example, claimant’s exhibit 9. The
transcript spells it otherwise.
. 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).
. Allen v Cloutier Construction Corp.
44 NY2d 290, 405 NYS2d 630 (1978).
. Ross v Curtis-Palmer Hydro-Electric
, 81 NY2d 494, 601 NYS2d 49 (1993).
. 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).