New York State Court of Claims

New York State Court of Claims

ANDERSON v. NEW YORK STATE THRUWAY AUTHORITY, #2008-037-017, Claim No. 112552, Motion No. M-74231


Synopsis



Case Information

UID:
2008-037-017
Claimant(s):
WAYNE ANDERSON
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the New York State Thruway Authority.
Claimant short name:
ANDERSON
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the New York State Thruway Authority.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112552
Motion number(s):
M-74231
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Cellino & Barnes, P.C.By: Michael J. Lovecchio, Esq.
Defendant’s attorney:
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLCBy: Natalie A. Grigg, Esq.
Third-party defendant’s attorney:

Signature date:
April 24, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Claimant’s motion for partial summary judgment:
1. Notice of motion and supporting affirmation of Michael J. Lovecchio, Esq., dated

November 8, 2007, with annexed Exhibits A-C;

2. Claimant’s memorandum of law dated November 8, 2007;

3. Opposing affidavit of Natalie A. Grigg, Esq., sworn to February 19, 2008, with

annexed Exhibit A;

4. Defendant’s memorandum of law dated February 19, 2008;

5. Reply affirmation of Michael J. Lovecchio, Esq., dated February 22, 2008, with

annexed Exhibit A.


Filed papers: Verified Claim filed July 21, 2006; Verified Answer filed September 15, 2006.

This is an action for personal injuries which arose on October 24, 2005 when the Claimant, Wayne Anderson, who was employed as a laborer for The L. C. Whitford Company, Inc., was injured while working on the Scajaquada/Route 198 bridge project in the City of Buffalo, New York. At the time of the incident, Claimant was standing on a Baker scaffold that had been erected on a floating platform that was connected to an ice breaker or column that supported the Scajaquada Bridge. While the platform came equipped with a railing around its periphery, the scaffold on which Claimant was standing was not so equipped. Immediately before the incident, Claimant was busting concrete on the ice breaker. He leaned forward with his rivet gun and started to bust some brittle concrete. When the brittle concrete came off quickly, he fell forward and fell off the scaffold landing on his back. The scaffold on which Claimant was standing was six to seven feet tall and was connected to a platform that was one to two feet above the water. Claimant was not wearing a safety harness, lanyard or any other safety device to prevent his fall. Claimant brings this motion seeking partial summary judgment on his Labor Law § 240 (1) cause of action.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, supra at 562). Applying these principles to this claim has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence. Every inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the non-moving party.

Labor Law § 240 (1) requires contractors and owners to provide safety devices in order to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. . . . Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Here, Claimant was injured when he fell from a scaffold while busting concrete from an ice breaker while using a rivet gun. The scaffold on which Claimant was standing was not equipped with safety rails and he was not provided with a harness, lanyard or other safety device to prevent his fall (see Patrick v People, Inc., 11 AD3d 990 [2004]; Rounds v Gibralter Steel Corp., 305 AD2d 1018 [2003]; Majewski v U.S. Food Serv., 291 AD2d 821 [2002]). This is precisely the type of incident Labor Law § 240 (1) was designed to prevent. Because Claimant was able to establish that the scaffold provided was inadequate to protect him from injury due to the force of gravity (see Capasso v Kleen All of Am. Inc., 43 AD3d 1346 [2007]; Ross v Curtis-Palmer Hydro-Elec. Co., supra at 501), and because “there is no view of the evidence here which could lead to the conclusion that the violation of Labor Law § 240 (1) was not the proximate cause of the accident” (Patrick v People, Inc., supra at 991 [2004], citing Felker v Corning Inc., 90 NY2d 219, 225 [1997]), Claimant is entitled to partial summary judgment. Accordingly, it is hereby

ORDERED, that Claimant’s motion no. M-74231 is granted and Claimant is awarded summary judgment on his Labor Law § 240 (1) cause of action.


April 24, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims