New York State Court of Claims

New York State Court of Claims

ARTEAGA v. THE STATE OF NEW YORK, #2007-029-039, Claim No. 107700


State held liable for fall from roof by employee of State contractor because no safety devices were provided, in contravention of labor Law section 240(1).

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:
By: Peter E. Tangredi & AssociatesBy: Wilbert Ramos, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 19, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an employee of Precision Roofing, Inc., a subcontractor engaged in roofing work on a building under construction at Sterling Forest State Park in Tuxedo, seeks damages for a June 8, 2002 incident in which he fell from the roof and was injured. Claimant alleges that the State, as owner of the premises, is liable pursuant to Labor Law Sections 200, 240(1) and 241(6). A bifurcated trial was held in which claimant and an engineer, Harold Edelson, testified on his behalf, and Joseph Galu, Resident Inspector with the Engineering Department of Palisades Interstate Park, testified on behalf of defendant.

Claimant testified [1] that as of June, 2002 he had been employed by Precision Roofing as a helper for two to three years. On the morning of Saturday, June 8 he and the other workers arrived at the park about 7:00 a.m. and began setting up ladders. Using one of the ladders, he proceeded to the roof of the building that was under construction. The building had a pitched roof, which claimant estimated at 30 to 40 degrees. The roof was wet because it had been raining that morning and there was a lot of “garbage” on it. [2] Claimant alleged there were no ropes, harnesses or any other safety devices available to him. While he was nailing roofing materials in place, about two to three feet from the edge of the roof, he “slipped” and fell from the roof, landing on stones and dirt on the ground. He estimated it was about 30 feet from the roof to the ground. Claimant testified that he had been working on the roof for about two hours before he fell.

On cross-examination, claimant admitted that he thought getting on the roof was “dangerous” because it was wet. He was not wearing a helmet, goggles or a harness. He alleged that there was no safety equipment available to him and that he never asked for any such equipment, although he acknowledged that he had worn goggles, a helmet and a harness previously on this job. After being shown a copy of his hospital record reflecting an admission time of 7:46 a.m., claimant testified that he did not believe that time was correct.

Mr. Edelman testified that he is board-certified as a safety expert. Defendant objected to his testimony on the ground that claimant’s response to defendant’s demand for expert witness information (CPLR 3101[d]) was insufficiently specific, particularly with respect to the § 241(6) cause of action, in that it referred to “Rule 23 of the Industrial Code,” which basically covers the entirety of the Industrial Code as it pertains to safety requirements on construction sites, without further specification. Although defendant’s characterization of the disclosure response, standing alone, was well-taken, the court noted that claimant’s bill of particulars identified the particular sections of the Industrial Code on which he was relying and, accordingly, limited the witness’ testimony on the Code to those sections. It developed that one of those sections [3] is simply the general finding that the hazards of falling and of falling objects and materials are something that requires special regulatory protection, and the others [4] consist of standards for safety belts, harnesses, tail lines and lifelines, life nets and ladders, but no mandate as to when such devices are required. The only piece of equipment used by or available to claimant was a ladder, and there was no allegation of any problem with the ladder or any connection between the ladder and claimant falling from the roof.

Edelman also opined that it was unsafe for a worker to work on a roof without any equipment – such as nets, lines, belts, ropes, harnesses or scaffolding – and that it was the responsibility of the owner and contractor, not the worker, to provide such equipment. These assertions form the very basis of the requirements of § 240(1) and, as such, hardly require the opinion of an expert witness.

Mr. Galu, the Resident Inspector responsible for the State park, testified that when he arrived at the construction site at about 7:15 that morning he observed workers on the roof and a foreman standing by the trailer. One of the workers told him “you missed all the excitement . . . one of the guys fell off the back of the roof.” Galu was also told that the injured worker had been “whisked off the site” and that the foreman had been instructed not to call anyone. Galu then notified a number of parties, including the park police, and the park manager.

Galu stated that the workers were not supposed to start work before 8:00 a.m. on weekends because the visitors’ center under construction was near a residential area and they did not want to disturb the residents. He noted that on construction jobs it was the duty of the contractors, not State personnel, to issue proper safety equipment to workers. When he arrived at the scene that morning, he did not see any nets, harnesses, ropes or scaffolding on the premises. Galu stated he had the authority to stop work when he observed a construction site being operated in an unsafe manner; however, such authority was irrelevant where, as here, Galu arrived after claimant’s accident had already occurred. There is no indication that he was remiss in not arriving sooner or that he had any reason to know that the roofers were working without proper protection.

There was no proof of any State negligence contributing to the subject incident. Thus, the cause of action pursuant to Labor Law § 200 – a codification of the common-law duty to provide a safe place to work [5] – must fail. The statute is not breached when a worker is injured because of the contractor’s unsafe methods or negligent acts, absent a showing that the owner exercised direction or control over the manner in which the worker performed his work. [6] In this context, “supervision or control” does not refer to the an owner’s general supervisory authority or the right to inspect, but rather requires actual or constructive notice of the unsafe practice, which was not present here. [7]

Similarly, there was no proof of any actionable violation of § 241(6) since none of the provisions of the Industrial Code cited by claimant had any applicability to this matter. Thus, claimant failed to sustain his burden of proof with respect to this cause of action as well.

The analysis of § 240(1) has no disputed relevant facts. Claimant was working, as part of a subcontractor’s crew, on the roof of a building being constructed at the State park. He was not using any safety equipment, nor was any such equipment at the site. He fell off the roof and was injured. Since “the failure to provide any protective devices for workers at the worksite establishes an owner’s or contractor’s liability [pursuant to § 240 (1)] as a matter of law,” [8] the court must find defendant liable, regardless of any contributory fault that otherwise might have been alleged. Neither the fact that claimant was mistaken as to how long he had been on the roof before he fell nor the fact that the crew started work earlier than they were supposed to has any relevance to this determination. There were no facts even remotely approaching what is necessary to establish either a “sole proximate cause” defense – requiring intentional unforeseeable conduct by a claimant breaking the chain of causation [9] – or a “recalcitrant worker” defense 1[0] - requiring that a worker refused, or at least ignored, specific instructions to use safety equipment that was available at the worksite. Defendant presented neither evidence nor argument in support of any possible defense to the § 240(1) claim.

Accordingly, the Clerk of the Court is directed to enter judgment of liability against defendant, pursuant to Labor Law § 240(1), and further noting that the causes of action pursuant to §§ 200 and 241(6) are dismissed. The court will schedule a damages trial after the filing of this decision.

September 19, 2007
White Plains, New York

Judge of the Court of Claims

[1].With the aid of an interpreter.
[2].Unless otherwise indicated, all quotations are from the electronically-recorded trial proceedings.
[3].Section 23-1.2(a).
[4].Sections 23-1.16, 23-1.17 and 23-1.21.
[5].Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505-506 [1993].
[6].Lombardi v Stout, 80 NY2d 290 [1992]; Persichilli v Triborough Bridge and Tunnel Auth., 16 NY2d 136 [1965]; Giambalvo v Chemical Bank, 260 AD2d 432 [2d Dept 1999]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311 [2d Dept 1997].
[7].See Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347 [2d Dept 2006]: “The testimony of defendant's assistant project manager that he inspected the work site several times a week and would report any safety violations he observed is insufficient to support a finding of supervision or control under Labor Law § 200 (Dalanna v City of New York, 308 AD2d 400 [2003]; De La Rosa v Philip Morris Mgt. Corp., 303 AD2d 190, 192 [2003])” (Cahill, 34 AD3d at 350).
[8].Zimmer v Chemung Co. Performing Arts, 65 NY2d 513, 521 [1985].
[9].See, e.g., Urias v Orange Co. Agric. Socy., 7 AD3d 515 [2d Dept 2004]; Weingarten v Wondsor Owners Corp., 5 AD3d 674 [2d Dept 2004].
1[0].Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004].