New York State Court of Claims

New York State Court of Claims
ZELNO v. THE STATE OF NEW YORK, # 2009-015-222, Claim No. 113231, Motion No. M-76973, Cross-Motion No. CM-77165


In action for injuries sustained when claimant was trampled by co-workers attempting to flee the path of a falling 3,600 - 4,000 pound stone from the roof of the capitol building during the course of construction work, Court granted claimant's motion for partial summary judgment on issue of liability under Labor Law 240 (1). Although claimant was not struck by the stone which fell, claimant established that the harm flowed directly from the application of gravity to the object and that the stone, which had just been placed in a bed of wet mortar, was not adequately secured for the purpose of the undertaking.

Case information

UID: 2009-015-222
Claimant(s): CARLTON W. ZELNO
Claimant short name: ZELNO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113231
Motion number(s): M-76973
Cross-motion number(s): CM-77165
Claimant's attorney: Martin, Harding & Mazzotti, LLP
By: Craig A. Cushing, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
F. Douglas Novotny, Esquire, Of Counsel
Third-party defendant's attorney:
Signature date: December 21, 2009
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR 3212. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. For the reasons which follow, claimant's motion is granted and the defendant's cross-motion is denied.

Claimant alleges a cause of action under Labor Law 240 (1) for injuries allegedly sustained on September 22, 2005 during the course of a construction project at the State Capitol building in Albany.(1) The State as owner of the building entered into a contract with Titan Roofing, Inc. ("Titan") for the rehabilitation of the roof on the north quadrant of the Capitol building. Titan, in turn, entered into a subcontract with Monaco Restorations, Inc. ("Monaco"), claimant's employer, for the performance of certain masonry work (claimant's Exhibit H, examination before trial transcript of Richard D. Hynes, pp. 18, 45). As part of the project, large granite stones, which the parties agreed weighed 3,600 - 4,000 pounds, were removed and lowered to the ground where they were cleaned and restored. As part of the cleaning and restoration process holes were drilled in the bottom of the decorative stones such as the one at issue herein. The stones were then returned to their position on the roof using a crane and nylon "belly straps" that wrapped under each stone (claimant's Exhibit F, p. 71; claimant's Exhibit G, pp. 27-28). The stones were then set in place on three-eighths inch metal rods and laid in a bed of mortar. Sean Griffin, a Monaco employee, involved in setting the stone immediately prior to the accident, testified at a hearing before members of the Crane Operators Examining Board on April 4, 2008.(2) Mr. Griffin testified that he and Joe Gaschel were setting the stone and Steve Miller was directing the crane operator (defendant's Exhibit A, p. 75). Mr. Griffin described the process of setting the stone, a decorative stone affixed to a pyramid shaped tower on the roof of the Capital building, by stating "[i]t set right on the bed, the bed mud. It sucked down. We put the level on it, it was plumbed, it was level, it was perfect" (defendant's Exhibit A, p. 76). The straps and "pick eyes" used to lift the stone onto the roof were removed and someone called for a break (defendant's Exhibit A, pp. 78-79). Mr. Griffin testified that at that point he said to Steve Miller "you're all set, right, you've got this, right?" (defendant's Exhibit A, p. 79). As Mr. Griffin and Mr. Gaschel started to climb down a ladder Griffin observed Steve Miller gather the straps in his hand, place them on a hook attached to the crane and signal the crane operator to move slowly (defendant's Exhibit A, p. 80). As he reached the bottom of the ladder he heard Mr. Miller yell "stop" and saw him waiving to the crane operator (defendant's Exhibit A, p. 80). Mr. Griffin testified that, at that point, "I looked up and I saw the stone start to tip, and then it just went. That's what I remember from that day. Now, the stone, it tipped over. It did not have much of a tipping apex" (defendant's Exhibit A, p. 81).

Claimant was seated on an overturned bucket, while taking a coffee break, on a scaffold located approximately 20 feet below the section of the roof where the stone had been laid (claimant's affidavit in support, 10 -12) when he heard a screeching sound and people screaming "look out" (claimant's affidavit in support, 10). He immediately got up from the bucket with the intention of running across the scaffold to a position of safety but was pushed face down onto the scaffold and trampled by other Monaco workers attempting to flee the area (Id. at 10; claimant's examination before trial transcript, pp. 49-51). The stone did not strike the claimant or the scaffold because it became caught on a gutter located on the edge of the roof (Id. at 11).

Mr. Griffin testified that the stone "was a very tall and a very narrow stone, like a domino. It had a flared base a little bit. But if you stood that stone up, I could push it over just by putting pressure. Most likely, as a grown man, I could push that stone over by myself. And it just went over" (defendant's Exhibit A, p. 81). After the accident both Mr. Griffin and Richard Hynes of the New York State Office of General Services observed that the three-eighths-inch metal rods on which the stone had been placed were slightly bent in the direction in which the stone fell (claimant's Exhibit H, p. 35; defendant's Exhibit A, p. 87). While the parties agree there is no definitive proof as to what caused the stone to fall, there is no dispute that the stone was neither braced nor secured by means other than the three-eighths-inch metal rods, and bed of mortar, when it fell from its position at the top of the pyramid shaped tower.

In support of his motion for summary judgment, claimant submitted, inter alia, an affidavit from Irving Paris, an architect. Mr. Paris rendered the opinion that "the stone that fell was not adequately secured on the roof of the pyramid. Once the chains and straps were removed from the stone, there were no safety devices used to keep the stone in place while the mud mortar hardened. Safety devices such as bracing, stays and/or straps or rope were necessary to prevent the stone from falling from its position on the pyramid and sliding toward the workers below" (affidavit of Irving Paris dated July 14, 2009, 24). Mr. Paris opined that "a strap could have been connected to . . . [a] cable, run over the top of the stone and connected to the cable on the opposite side of the pyramid (Id. at 25). Mr. Paris also indicated that the stone could have been additionally supported using wood bracing or staging (Id. at 26).

Labor Law 240 (1) imposes a nondelegable duty on owners and contractors to "furnish or erect, or cause to be furnished or erected. . . 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 [construction workers employed on the premises]" (Labor Law 240 [1]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). The special hazards to which the extraordinary protections of Labor Law 240 (1) apply are limited to "such specific gravity- related accidents as falling from a height or being struck by a falling object that was improperly hoisted or secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; see also Rocovich v Consolidated Edison Co., 167 AD2d 524 [1991]). In order to trigger the protections of the statute in falling object cases, a claimant must show that "the object fell, while being hoisted or secured" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]) or that the object "required securing for the purposes of the undertaking"(Outar v City of New York, 5 NY3d 731, 732 [2005]; see also Quattrocchi v F.J. Sciame Constr. Corp. (11 NY3d 757 [2008]; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070 [2009]; Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004 [2009]). Only in those circumstances in which the use of protective devices could be "expected" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268) or was foreseeably necessary (Buckley v Columbia Grammar & Preparatory, 44 AD3d 263 [2007]) may the protections of the statute be invoked. Claimant bears the burden of establishing the existence of an elevation-related risk, that adequate safety devices were not provided and that the absence or inadequacy of devices of the kind enumerated in the statute was a proximate cause of the injuries alleged (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]; Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Buckley v Columbia Grammar & Preparatory, 44 AD3d at 268-269). In the Court's view, claimant has met this burden.

Here, the placement of a 3,600 - 4,000 pound stone in a bed of wet mortar on the roof of the Capitol building was an elevation-related risk for which the protections of the statute were foreseeably necessary. Defendant's argument in opposition to the motion that the stone was a permanent part of the structure for which the use of safety devices was not required overlooks the fact that the stone had just been placed in a bed of mortar and was not yet permanently affixed to the roof (see Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404 [2007]). For this reason, defendant's reliance on Marin v AP-Amsterdam 1661 Park LLC (60 AD3d 824 [2009]) and Novak v Del Savio (64 AD3d 636 [2009]) is misplaced. In Marin (supra) "the metal bracket that struck the plaintiff had been installed prior to the plaintiff's accident . . . and thus became part of the building's permanent structure" (Id. at 825-826). The bracket which fell was not being hoisted or secured nor was it foreseeable that it required securing for purposes of the undertaking (see Narducci [supra]). Here, on the other hand, the stone fell "a couple minutes" after it was placed in a bed of wet mortar on the roof of the Capitol (defendant's Exhibit A, p. 83). The need for safety devices to secure the stone was foreseeable and, according to claimant's expert, necessary.

Novak (supra) is similarly distinguishable. There, the plaintiff was standing on a ladder installing pipe in the ceiling of a building under construction. He was preparing to install the pipe, which he had wedged in the ceiling at a height only slightly above his head, when the pipe fell and struck him in the face. The Court held that the claimant failed to show that the pipe was being hoisted or secured or required securing for the purpose of being affixed to the ceiling. Accordingly, the accident did not fall within the scope of Labor Law 240 (1) because it "did not result from the special hazards associated with gravity-related accidents" (Id. at 638). Unlike the facts in Novak (supra), the risk that a 3,600 - 4,000 pound stone could fall from its position on the roof of a building under construction is precisely the type of elevation-related event that Labor Law 240 (1) was intended to address (see Beauchesne v City of New York, 261 AD2d 145 [1999]). Whether the force which caused the stone to tip and fall was wind, human error or some other unknown event is of no consequence since the general risk and character of injuries was foreseeable (cf. Derediarian v Felix Contr. Corp., 51 NY2d 308, 317 [1980]). Where, as here, it is undisputed that no safety devices were provided to prevent the stone from falling, the precise cause of the accident is inconsequential (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287 [2008] [plaintiff's testimony that he was struck by a falling object constitutes prima facie showing that the appropriate safety device was not used]; Raczka v Nichter Util. Constr. Co., 272 AD2d 874 [2000] [plaintiff met his burden of establishing entitlement to summary judgment on the issue of liability through proof his injury occurred when the lift upon which he was standing collapsed; evidence of the reason for the malfunction was unnecessary]; Cantineri v Carrere, 60 AD3d 1331 [2009] [collapse of scaffold establishes prima facie evidence of liability under Labor Law 240 (1) regardless of whether the plaintiff was on or under the scaffold when it collapsed]).

Here, the plaintiff's Labor Law 240 (1) claim is premised on the contention that the stone fell because of the absence or inadequacy of a device of the kind enumerated in the statute. The fact that the stone did not strike the claimant does not foreclose the imposition of liability under Labor Law 240(1) where safety devices enumerated in the statute "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 at 501). The Court of Appeals in Runner v New York Stock Exchange, 2009 WL 4840213 (2009) recently addressed the issue whether an inadequately secured object must actually strike an injured worker in order to invoke the protections of the statute, stating:

Manifestly, the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry -- one which may be answered in the affirmative even in situations where the object does not fall on the worker -- is rather whether the harm flows directly from the application of the force of gravity to the object (id. at ___ ; see also Sasso v NYMED, Inc., 238 AD2d 799, 800 [1997]; Lopez v Boston Props. Inc., 41 AD3d 259 [2007] ; Van Eken v Consolidated Edison Co. of N.Y., 294 AD2d 352 [2002]; Lockwood v. Nat'l Valve Mfg. Co., 143 AD2d 509 [1988]).

As the claimant's injuries here flowed directly from the application of the force of gravity to the stone, liability may be imposed under Labor Law 240 (1).

Nor does the fact that the claimant was taking a coffee break when the accident occurred remove him from the protective ambit of the statute (see Morales v Spring Scaffolding, Inc., 24 AD3d 42 [2005]; Kouros v State of New York, 288 AD2d 566 [2001]; but see Keenan v Just Kids Learning Ctr., 297 AD2d 708 [2002]). Claimant has established his entitlement to partial summary judgment through the tender of evidentiary proof, in admissible form, demonstrating that required safety devices were not provided and that this failure was a proximate cause of his injuries (Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendant failed in opposition to the motion to raise a triable issue of fact.

Based on the foregoing, claimant's motion for partial summary judgment on the issue of liability under Labor Law 240 (1) is granted and the defendant's cross-motion for summary judgment dismissing the claim is denied.

December 21, 2009

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:


  1. Notice of motion dated July 17, 2009;
  2. Affidavit of Carlton W. Zelno sworn to June 25, 2009 with exhibits;
  3. Affidavit of Irving Paris sworn to July 14, 2009 with exhibit;
  4. Memorandum of law of Craig A. Cushing dated July 17, 2009.


  1. Notice of cross-motion dated September 8, 2009;
  2. Affirmation of F. Douglas Novotny dated September 8, 2009 with exhibits;
  3. Memorandum of Law of F. Douglas Novotny dated September 8, 2009;
  4. Affidavit of Irving Paris sworn to September 11, 2009;
  5. Affidavit of Craig A. Cushing sworn to September 11, 2009.

1. By Decision and Order of this Court dated December 21, 2006, claimant's motion for late claim relief was granted to the extent he sought to file a claim alleging a violation of Labor Law 240 (1) and denied to the extent he sought to allege causes of action under Labor Law 200, 241 (6) and for common law negligence.

2. The purpose of the hearing was to determine whether or not any action should be taken against the crane operator. Following the hearing it was the recommendation of the Hearing Officer that no action be taken against her as "it appears that she had run the crane properly and safely" (defendant's Exhibit A, p. 94).