New York State Court of Claims

New York State Court of Claims

STURTEVANT v. THE STATE OF NEW YORK, #2008-033-310, Claim No. 113101, Motion Nos. M-74328, M-74701


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):
M-74328, M-74701
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Seiden & KaufmanBy: Steven J. Seiden, Esq.
Defendant’s attorney:
Betancourt, Van Hemmen, Greco & KenyonBy: Ronald Betancourt, Esq. and Virginia A. Harper, Esq.
Third-party defendant’s attorney:

Signature date:
September 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries sustained on November 1, 2006, when Donald Sturtevant (hereinafter "claimant") fell from a height, while engaged in work on the Wantagh State Parkway bridge project in Nassau County, New York. The claim of Rosemarie Sturtevant is derivative in nature.

Claimants' motion for partial summary judgment is on the issue of liability pursuant to Labor Law §§ 240 (1) and 241(6)[1]. Claimant alleges that the defendant is absolutely liable for his injuries pursuant to Labor Law §240(1) in that claimant was working on a scaffold that had no railings and fell from a ladder that was not secured. Defendant opposes the motion for summary judgment.

Defendant moves this Court for an order compelling discovery[2]. Defendant seeks production of claimant’s tax returns, medical authorizations, Social Security authorizations and written witness statements in claimant’s possession. Claimant opposes defendant’s motion.

On the day of his injury, claimant was on the ground cutting wood for other workers. These other workers were working above the ground building forms around rebar in order to pour concrete to construct a portion of the bridge. Claimant cut several pieces of wood for a fellow worker and went to deliver the wood to him. Claimant had to climb up a ladder, approximately 20 feet, to reach a scaffold which would give him access to the form in which his fellow worker was working. The scaffold claimant climbed onto was about 12 feet long by 2 feet wide. Rather than having the workers climb on the rebar, a six foot ladder leaned against the form to give access to the top of the form where claimant’s co-worker was. This 6 foot ladder was not secured and there were no railings on the scaffold.

Claimant contends that he was walking on the narrow scaffold and tripped on debris that was on the scaffold. Claimant lost his balance when he fell, grabbed for the 6 foot ladder and fell from the scaffold with the unsecured 6 foot ladder.

In opposition, defendant presents an eyewitness account of a New York State DOT inspector working at the location on the day of claimant’s accident. According to the inspector, claimant was climbing on the 6 foot ladder and was on the third rung, approximately three feet off of the ground. The inspector saw the ladder lean back from the wall and then claimant and the ladder fell from the scaffold. Defendant further argues the lack of railings on the scaffold was not a proximate cause of claimant’s injuries because according to defendant’s expert, any railing would have only been 36 to 42 inches above the floor of the scaffold. According to defendant’s expert, a railing at this height would not have prevented claimant’s fall.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
Labor Law §240(1) was adopted to provide protection for workers engaged in various tasks that entail a significant risk due to the relative elevation at which the tasks must be performed, or at which materials must be positioned or secured. These two types of risks are generally referred to as the falling object or the falling worker test. The purpose of the statute is to put the onus of protecting workers on the owner instead of the worker. A violation of this statute which proximately causes an injury imposes absolute liability upon the owner. In applying the statute, it is clear that the Court must construe the statute liberally to achieve its purpose (Quigley v Thatcher, 207 NY 66). The Court may not, however, interpret the statute to establish a right of recovery where it was not intended (Duda v John W. Rouse Constr. Corp., 32 NY2d 405).

Labor Law §240(1) states in part:
All contractors and owners...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.

In Cupidon v Zlatich, 15 Misc 3d 1137A, the plaintiff was descending an unsecured ladder when it gave way and leaned away from a building causing plaintiff to fall. The court in Cupidon held “evidence that a worker's fall was caused by the movement or slipping away of an unsecured ladder constitutes prima facie proof of a Labor Law § 240 (1) violation (see e.g. Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598, 598 [2005]; Loreto v 376 St. Johns Condominium, Inc., 15 AD3d 454, 455 [2005]; Sztachanski v Morse Diesel Intl., Inc., 9 AD3d 457, 457 [2004]; Peter v Nisseli Realty Co., 300 AD2d 289, 290 [2002].”

In Woods v Design Ctr., LLC, 42 AD3d 876, plaintiff stood on a three foot unsecured step ladder. As plaintiff began to descend the ladder, it began to tip to one side causing plaintiff to fall. The court held “ ‘the unrefuted evidence establishes that the [safety] device [, i.e., the ladder,] . . . failed to perform its [intended] function of supporting the worker' (Musselman v Charles A. Gaetano Constr. Corp., 277 AD2d 691, 692 [2000], quoting Briggs v Halterman, 267 AD2d 753, 754-755 [1999]; (Cf. Trippi v Main-Huron, LLC, 28 AD3d 1069, 1070 [2006])” (at 877).

According to the inspector’s deposition (claimant’s Exhibit 8), the first time the inspector saw claimant he was in midair with the ladder. The deposition was given on October 2, 2007. On April 18, 2008, the inspector provided an Affidavit to defendant for use in opposition to the instant motion. It is only in this Affidavit, prepared for litigation, the inspector saw claimant on the third rung of the ladder still on the scaffold.

Accepting defendant’s version of the accident, that claimant was on the unsecured ladder, defendant has failed to create material issue of fact. The fact that an unsecured ladder was provided to claimant on the scaffold was a proximate cause of his accident. Assuming claimant was on the ladder, as defendant avers, when claimant lost his balance and began to pull back, a secured ladder would have stayed in place. The ladder falling away from the form is evidence in and of itself that there is a violation of Labor Law §240(1) (Madden v Trustees of Duryea Presbyterian Church, 210 AD2d 382).

Labor Law §241(6) states
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

In Rizzuto v L.A. Wenger Contracting Co. Inc., 91 NY2d 343, 348, the court held
Labor Law §241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Long v Forest-Fehlhaber, 55 NY2d 154, 160, rearg denied 56 NY2d 805; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299-300, rearg denied 45 NY2d 776). Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at 407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44 NY2d, at 300, supra).

To establish liability under Labor Law §241(6), Rizzuto stated
Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. (supra), we refined the standard of liability under section 241 (6) by requiring that the rule or regulation alleged to have been breached be a " 'specific, positive command' " (81 NY2d, at 504, supra), rather than a " 'reiteration of common-law standards' " which would merely incorporate into the State Industrial Code a general duty of care (id.). We distinguished between Code provisions "mandating compliance with concrete specifications and those that establish general safety standards" ( id., at 505), cautioning that any other rule would permit recovery under section 241 (6) against a nonsupervising owner or general contractor merely by application of broad, nonspecific regulatory language and "would seriously distort the scheme of liability ... that has been developed in our case law" (id., at 504).

at 349.

Again, this Court will assume defendant’s version of claimant’s accident for purpose of the motion. For this purpose, the Court will disregard the clear violations established for the failure of safety rails to exist on the scaffold. However, claimant also establishes a violation of the New York State Industrial Code Regulation §23-1.21 in that the 6 foot ladder was not “nailed or otherwise securely fastened in place.”

The Court now turns its attention to defendant’s motion to compel discovery. This motion is rendered moot due to the Court’s granting summary judgment on the question of liability only as to the request for witness statements by defendant. The remaining items sought by defendant address the question of damages.

Defendant offers no support to the Court for the ordering of the disclosure of claimant’s individual tax returns. Defendant is in possession of claimant’s W-2 Wage and Tax Statements from 2003 to 2006. Defendant seeks to get claimant’s tax returns because claimant was unclear as to his deductions for work related expenses. Claimant estimated the expenses at approximately $2,000.00, but was unclear as to the exact amount or its breakdown. However, claimant is not self-employed and the source of dues paid to the union can be obtained through claimant’s union. While defendant has unsuccessfully tried to obtain these records, defendant is directed to submit a subpoena duces tecum to the Court to be so-ordered. As to the remaining items defendant seeks to find the expense of, the Court will allow defendant to depose claimant again as to his expenses.

Further, claimant is directed to produce the medical authorizations defendant seeks. Claimant has represented that he is unable to work due, solely, to the injuries received in this case. Claimant’s medical history is relevant to the determination of this conclusion.

Based upon the foregoing, claimants' motion for partial summary judgment on the issue of liability pursuant to Labor Law §§240(1) and 241(6) is granted. Defendant’s motion to compel discovery is granted in part and denied in part.

September 26, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers were read and considered on Claimants’ motion: Notice of Motion dated March 19, 2008 and filed March 21, 2008; Attorney’s Affirmation of Steven J. Seiden, Esq. with annexed Exhibits 1-18 dated March 19, 2008 and filed March 21, 2008; Defendant State of New York’s Opposition to Claimant’s Motion for Summary Judgment dated May 6, 2008 and filed May 7, 2008; Affidavit of Matthew Natividad in Opposition to Claimant’s Motion for Summary Judgment sworn to April 18, 2008 and filed May 7, 2008; Affidavit of John P. Coniglio in Opposition to Claimants’ Motion for Summary Judgment sworn to May 5, 2008 and filed May 7, 2008; Reply Affirmation of Steven J. Seiden, Esq. dated May 20, 2008 and filed May 21, 2008.
[2].The following papers were read and considered on Defendant’s motion: Notice of Motion dated December 12, 2007 and filed December 14, 2007; Affirmation of Good Faith of Ronald Betancourt, Esq. dated December 12, 2007 and filed December 14, 2007; Affirmation of Ronald Betancourt, Esq. in Support of Motion to Compel Disclosure with annexed Exhibits A-R dated December 12, 2007 and filed December 14, 2007; Defendant State of New York’s Motion to Compel Discovery Pursuant to C.P.L.R. §3124 (Memorandum of Law) dated December 12, 2007 and received December 14, 2007; Affirmation in Opposition of Steven J. Seiden, Esq. with annexed Exhibits 1-9 dated January 14, 2008 and filed January 16, 2008; Reply Affirmation of Ronald Betancourt in Support of Motion to Compel Disclosure with enclosure dated January 21, 2008 and filed January 23, 2008; Supplemental Reply Affirmation of Ronald Betancourt in Support of Motion to Compel Disclosure with Exhibit dated January 28, 2008 and filed February 1, 2008.