New York State Court of Claims

New York State Court of Claims

DIPALMA v. STATE OF NEW YORK, #2008-037-023, Claim No. 111910, Motion No. M-74424


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:
Sugarman Law Firm LLPBy: Mark R. Multerer, Esq.
Defendant’s attorney:
Walsh & Wilkins By: Christopher E. Wilkins, Esq.
Third-party defendant’s attorney:

Signature date:
June 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Claimant’s motion for partial summary judgment under § 240 (1) of the Labor Law:
1. Notice of motion and supporting affidavit of Mark R. Multerer, Esq. sworn to

January 11, 2008, with annexed Exhibits A-H;

2. Claimant’s memorandum of law dated January 11, 2008;

3. Opposing affirmation of Christopher E. Wilkins, Esq. dated April 3, 2008, with

annexed Exhibits A-B;

4. Defendant’s memorandum of law dated April 3, 2008.

Filed papers: Claim filed January 30, 2006; Answer filed May 18, 2006.

On November 1, 2005, Claimant, a construction laborer employed by The L.C. Whitford Company, Inc. (Whitford),[1] was injured at a construction site at or near Niagara Street and New York State Route 198 (a/k/a Scajaquada Expressway) in the City of Buffalo, County of Erie, State of New York. Whitford was the general contractor hired by the State of New York for the Route 198 rehabilitation project. Route 198 is elevated in the area of the accident as it transverses the Scajaquada Creek. At the time of the accident Claimant was standing on a platform that extended from the Creek bank over the creek and around the concrete piers that support the Expressway over the creek. He was shoveling concrete debris that had been chipped off the bridge support piers into a hopper or metal box that was on the prongs or forks of a rough terrain forklift. Claimant maintains that Defendant, as owner of the work site, was negligent in failing to provide him with a safe place to work in violation of §§ 200, 240 (1) and 241 (6) of the Labor Law. Claimant brings this motion for partial summary judgment under § 240 (1) of the Labor Law.

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 those principles to this motion has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and copies of photographs. Every reasonable inference that can be drawn from the evidence presented shall be viewed in the light most favorable to the Defendant in considering Claimant’s motion for partial summary judgment under § 240 (1) of the Labor Law.
The so-called scaffolding law, § 240 (1), requires that
“. . . [a]ll contractors and owners and their agents . . . 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.”

Labor Law § 240 (1) imposes absolute liability. Its purpose “is to protect workers from the extraordinary hazards of elevating themselves or their materials” (Corbett v Hogan, 248 AD2d 983 [1998]). Not all elevation-related risks are, however, encompassed within the extraordinary protection of § 240 (1). In fact, as the Court of Appeals made clear in Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991), § 240 (1) should only apply when there is
“. . . a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.”

Here, Claimant alleges that the accident occurred when the hopper or metal box containing the concrete debris, which he claims was elevated above the ground by one or two feet, slid down the prongs of the rough terrain forklift and struck him in the back (see Claimant’s affidavit annexed to his motion papers as Exhibit H). He also alleges in his affidavit that the prongs or forks of the forklift were pointed down. In his deposition, however, he testified that he “honestly” didn’t remember if the hopper was tilted toward him, into the bank, or if it was level (see pp. 49-50 of Claimant’s deposition transcript annexed to his motion papers as Exhibit D). The operator of the forklift, Neil Boccio, testified that he positioned the rough terrain forklift in an area off the bike path near the Expressway and lowered the hopper to the creek bed and the platform where Claimant was working. As he lowered the hopper, the prongs of the forklift were level. He believed, however, that the angle of the machine, the angling of the boom, and the angle of the terrain may have caused the hopper to be pointed down towards the water when it was near or on the ground. The operator lowered the hopper as far as possible. He believed it was positioned on the ground. When Claimant’s co-worker shoveled some concrete debris into the hopper, the weight of the debris caused the hopper to slide down the forks and hit Claimant in the back. The hopper did not come completely off the forks of the forklift (see pp. 13-14, 18-20, 44-46 and 54 of Boccio’s deposition transcript annexed to Claimant’s motion papers as Exhibit F).

At the time of the accident, the hopper into which debris was being shoveled was located at approximately Claimant’s waist level. Under the undisputed facts, there was no height differential between Claimant and the sliding hopper. Thus, it cannot be said that § 240 (1) of the Labor Law is implicated because of a height differential between the elevated level of the work being done and a lower level or a height differential between the level where the worker was positioned and a higher level where materials or a load were being hoisted or secured (see Melo v Consolidated Edison Co. of N. Y., 92 NY2d 909 [1998]). Moreover, there is a question of fact as to whether the accident was even gravity-related or was simply the result of the weight of the debris shifting in the hopper. Claimant has failed to establish that the accident was the result of an extraordinary elevation risk and not the result of the usual and ordinary dangers of a construction site (Matter of Fischer v State of New York, 291 AD2d 815 [2002]; Powell v Sodus Cold Stor. Co., 258 AD2d 904 [1999]; Corbett v Hogan, supra at 983-984; Malecki v Wal-Mart Stores, 222 AD2d 1010 [1995]). Accordingly, Claimant’s motion for partial summary judgment must be denied. It is therefore

ORDERED, that Claimant’s motion M-74424 for partial summary judgment under § 240 (1) of the Labor Law is denied.

June 4, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. Claimant’s employer is misidentified in the claim as J. T. Whitford.