STURTEVANT v. THE STATE OF NEW YORK, #2008-033-310, Claim No. 113101, Motion
Nos. M-74328, M-74701
DONALD STURTEVANT and ROSEMARIE STURTEVANT
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
Seiden & KaufmanBy: Steven J. Seiden, Esq.
Betancourt, Van Hemmen, Greco &
KenyonBy: Ronald Betancourt, Esq. and Virginia A. Harper, Esq.
September 26, 2008
See also (multicaptioned
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
. 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
. 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
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
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 ; Loreto
v 376 St. Johns Condominium, Inc., 15 AD3d 454, 455 ; Sztachanski v
Morse Diesel Intl., Inc., 9 AD3d 457, 457 ; Peter v Nisseli Realty
Co., 300 AD2d 289, 290 .”
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
, quoting Briggs v Halterman, 267 AD2d 753, 754-755 ; (Cf.
Trippi v Main-Huron, LLC, 28 AD3d 1069, 1070 )” (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
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
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).
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.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
.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.
.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.