New York State Court of Claims

New York State Court of Claims

McCANN v. THE STATE OF NEW YORK, #2007-038-532, Claim No. 107228, Motion Nos. M-72788, CM-72869


In Labor Law § 240 (1) claim, defendant’s motion for summary judgment granted and claimant’s cross motion for summary judgment denied. Metal beam that fell and struck claimant was deliberately dropped, and thus, there is no viable Labor Law § 240 (1) claim. Further, beam falling from bed of a flatbed truck is not an elevated related hazard within the contemplation of Labor Law § 240 (1).

Case Information

MARGARET A. McCANN, as Administratrix of the Estate of FLOYD McCANN, Deceased
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:
MICHAELS & SMOLAK, P.C.By: Michael G. Bersani, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Stephen J. Maher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages for injuries sustained by claimant Floyd McCann, who was injured while working in the employ of a demolition subcontractor at a worksite owned by defendant State of New York.[1] The claim asserts causes of action for common law negligence and violations of Labor Law §§ 200, 240 and 241(6). Defendant moves for summary judgment dismissing the claim in its entirety; claimant cross-moves for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). For the reasons that follow, the Court will grant defendant’s motion and dismiss the claim.

The pertinent facts of this claim are undisputed.[2] Claimant was working for L.M. Sessler Excavating and Wrecking (L.M. Sessler) as a truck driver on the evening of March 10, 2000. L.M. Sessler was a subcontractor engaged in the demolition of a bridge on Route 85 in Albany County, and claimant was assigned to drive a flatbed truck loaded with steel beams that had been removed from the bridge. After two large-I beams had been loaded on the bed of claimant’s truck, he drove it to a different location at the worksite so that two smaller beams could be loaded on top of the larger I-beams. To accomplish this task, LaVerne Sessler, Jr. (Sessler), a principal of L.M. Sessler, was operating an excavator equipped with an apparatus[3] that was attached to the arm of the excavator. Sessler used the apparatus, or “grapple,” as he described it, to grab and lift the smaller beams and swing them around so they were positioned above the truck bed. While Sessler placed the first smaller beam on top of the I-beams without incident, the second smaller beam was not perfectly flat, and Sessler was unable to satisfactorily place it on the flatbed for transport. According to his uncontradicted testimony at an examination before trial (EBT), Sessler released the beam from the grapple onto the flatbed and then used the grapple to intentionally slide the beam off the truck onto the ground so that he could rotate the beam, pick it up, and reposition it so that a different surface of the beam would lay atop the I-beams. As Sessler was sliding the beam off the truck, claimant began to walk from the cab end of the truck toward Sessler in the direction of the sliding beam. Claimant was struck by the falling beam, which landed on his leg, causing severe injury.

Claimant seeks the imposition of absolute liability upon defendant in accordance with Labor Law § 240 (1), as defendant is the owner of the property where claimant was injured (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560 [1993]; Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). Liability does not attach by the mere happening of an accident however, as a claimant/plaintiff seeking the extraordinary protection of Labor Law § 240 (1) must establish three elements: (1) that he or she was engaged in an activity enumerated by the statute (see e.g. Joblon v Solow, 91 NY2d 457 [1998]) or a related activity necessary and incidental thereto (see Lombardi v Stout, 80 NY2d 290, 296 [1992]); (2) that the injury was sustained due to an elevation-related hazard (see Ross v Curtis Palmer Hydro-Elec. Co., supra at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]); and (3) that a required safety device was absent or defective and the absence or defect was a proximate cause of claimant/plaintiff’s injury (see Ross v Curtis Palmer Hydro-Elec. Co., supra, at 501; Heidelmark v State of New York, 1 AD3d 748, 749 [3d Dept 2003]). In particular, “[i]n order to establish Labor Law § 240 (1) liability in a falling object case, ‘[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute’” (Isabell v U.W. Marx, Inc., 299 AD2d 701, 702 [3d Dept 2002], quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis in original]). An object that is deliberately dropped in the workplace is not a hazard that is contemplated by Labor Law § 240 (1) (see Isabell v U.W. Marx, Inc., supra at 702; see also Roberts v General Electric Co., 97 NY2d 737, 738 [2002][asbestos deliberately dropped from a height of 12 feet was not a material that was being hoisted or a load that needed securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240 (1) is inapplicable]), unless the device used to drop the object did not perform as intended to complete the task at hand or was defective or malfunctioned (cf. Corey v Gorick Constr. Co., 271 AD2d 911, 913 [3d Dept 2000]).

This claim cannot be sustained because the beam that struck claimant had been deliberately made to fall off the flatbed of the truck. As stated by Sessler at his EBT, “after a couple of attempts to get the beam in a place I was comfortable with, I chose to let go of the beam and pull it back off the truck to reposition it” and “I intentionally pulled [the beam] off the side of the truck” (Maher Affirmation, Exhibit F, at 23-24, 39-40).[4] Notwithstanding claimant’s testimony that Sessler was not putting the small beams onto the flatbed in a proper and safe manner (Maher Affirmation, Exhibit E, at 93-94), there is no evidence in the record that the equipment did not “perform as intended to complete the task at hand” (Corey v Gorick Constr. Co., supra at 913), or that the equipment malfunctioned. Despite claimant’s general testimony that the use of a crane might have been a better choice for loading beams onto the truck, there is no evidence in the record that the use of a hoisting or securing device of the types enumerated in Labor Law § 240 (1) was necessary or expected (see Isabell v U.W. Marx, Inc., supra at 702; compare Cammon v City of New York, 21 AD3d 196 [1st Dept 2005] [unrefuted testimony addressed the lack of safety devices and how the presence of those safety devices may have prevented claimant’s accident]). Thus, claimant’s accident was the result of a general workplace hazard and not the result of an occurrence that gives rise to liability under Labor Law § 240 (1) (see Roberts v General Electric Co., supra, at 738; Isabell v U.W. Marx, Inc., supra, at 702; see also Perillo v Lehigh Const. Group. Inc., 17 AD3d 1136, 1137 [4th Dept 2005] [“the remains of the partially demolished partition wall were not ‘materials or loads’ that were being ‘hoisted or secured’ and thus Labor Law section 240 (1) does not apply”]). Accordingly, the Labor Law § 240 (1) claim must be dismissed.

The parties’ further arguments will, however, be briefly addressed. Claimant argues that he is entitled to the protection of Labor Law § 240 (1) because, as a truck driver removing steel beams from a demolition project, he was engaged in an activity sufficiently necessary and incidental to demolition, a statutorily enumerated activity (see Lombardi v Stout, supra; Orr v David Christa Const., Inc., 206 AD2d 881 [4th Dept 1994]; Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002 [4th Dept 1992]; cf. LaFontaine v Albany Management, Inc., 257 AD2d 319, 320-321 [3d Dept 1999], lv denied 94 NY2d 751 [1999]). This argument has some force, but the argument, standing alone, is insufficient to sustain claimant’s cross motion for summary judgment or to defeat defendant’s motion because it addresses only one of the conjunctive elements of a Labor Law § 240 (1) cause of action.

The Court agrees with defendant’s contention that claimant’s accident did not involve an elevation-related hazard encompassed by Labor Law § 240 (1). The evidence submitted demonstrates that claimant and the truck were both situated on the ground, that the bed of the truck was no more than four and one half feet above the ground, and that the beams fell from an elevation of no more than seven feet. Because the falling beam was situated at the same level at which claimant was working, the facts do not support a viable Labor Law § 240 (1) claim (see Jacome v State of New York, 266 AD2d 345, 346 [2d Dept 1999] [“[t]he task of unloading a truck is not an elevation-related risk simply because there is a difference in elevation between the ground and the truck bed”]; Phelan v State of New York, 238 AD2d 882, 883 [4th Dept 1997], lv denied 90 NY2d 812 [1997] [“an incident involving objects falling from the bed of a flatbed truck is not the type of special, elevation-related hazard contemplated by Labor Law § 240 (1)”]; see also St. Louis v Town of North Elba, 17 AD3d 832, 833 [3d Dept 2005]; Puckett v County of Erie, 262 AD2d 964, 965 [1999]; Malecki v Wal-Mart Stores, Inc., 222 AD2d 1010 [4th Dept 1995]; compare Lociciero v Princeton Restoration, Inc., 3 Misc 3d 1109[A] [Sup Ct, Suffolk County, 2004] [plaintiff truck driver was injured by metal mesh bundle that fell 20 feet while being hoisted to the second floor of the building under construction]). Claimant’s reliance on Orr v David Christa Const., Inc., supra, for the proposition that such a claim can be stated when an object has fallen off a flatbed trailer is misplaced, as Orr considered only the issue of whether the plaintiff was engaged in a protected activity (see Phelan v State of New York, supra; Flihan v Cornell University, 237 AD2d 921, 922 [4th Dept 1997]).

In sum, the claim must be dismissed because: (1) claimant’s accident occurred as the result of the beam being deliberately made to fall off the truck by equipment that was not defective and was performing as intended, and the operation of sliding the beam off the truck did not implicate the use of safety devices, and (2) the accident did not involve an elevation-related hazard that is encompassed within the protections of Labor Law § 240 (1).

Accordingly, claimant’s cross motion for partial summary judgment is DENIED, defendant’s motion for summary judgment is GRANTED, and Claim No. 107228 is hereby DISMISSED.

May 8, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion for Summary Judgment, dated January 5, 2007;

(2) Affirmation in Support of Summary Judgment of Stephen J. Maher, AAG, dated

January 5, 2007, with exhibits A-H;

(3) Defendant’s Memorandum of Law, dated January 5, 2007;

(4) Notice of Cross-Motion, dated January 22, 2007;

(5) Affidavit of Michael G. Bersani, Esq., sworn toJanuary 22, 2007;

(6) Claimant’s Memorandum of Law, dated January 22, 2007;

(7) Reply Affirmation of Stephen J. Maher, AAG, dated February 5, 2007.

[1]. The Court is informed that claimant died of causes unrelated to this claim during its pendency. A Letter of Administration was issued to Margaret A. McCann (Maher Affirmation, Jan. 5, 2007, Exhibit H). The Court will sua sponte amend the caption of this claim accordingly. The claim asserts a derivative cause of action by claimant Margaret A. McCann, Floyd McCann’s wife. In this decision, the term “claimant” shall refer to the late Floyd McCann or the administrator of his estate as appropriate, unless otherwise indicated.
[2]. Claimant’s administrator does not present any arguments in opposition to the branches of defendant’s motion seeking dismissal of the causes of action alleging common law negligence and violations of Labor Law §§ 200 and 241(6), and her cross motion is addressed only to the cause of action pursuant to Labor Law § 240(1). Those unopposed arguments are deemed conceded, and summary judgment dismissing causes of action alleging common law negligence and violations of Labor Law §§ 200 and 241(6) will be granted. Accordingly, this decision addresses only the Labor Law § 240 (1) cause of action.
[3]. The “apparatus” attached to the arm of the excavator was described by different witnesses to the incident as a concrete crusher, grapple, claw or shear.
[4]. That Sessler intended to cause the beam to fall off the truckbed is acknowledged in the submissions of both parties, and there is nothing in the record to dispute Sessler’s testimony that he deliberately and purposefully slid the beam off the flatbed. Claimant stated in his EBT that he did not “know if [Sessler] released [the beam] or what happened” (Maher Affirmation, Exhibit E, at 79). Garry Henninger stated in his EBT that he could not remember whether the beam rolled off the flatbed under its own weight and that he really did not see what was going on because his view was obstructed (Maher Affirmation, Exhibit G, at 53, 59).