New York State Court of Claims

New York State Court of Claims
THOMAS v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, # 2009-031-065, Claim No. 111715, Motion No. M-76838

Synopsis

Claimant demonstrated that Defendant State of New York violated section 240(1) of the Labor Law by failing to ensure that the ladder upon which she was working was adequately set up and secured. Defendant's allegations concerning the manner in which Claimant descended the ladder, demonstrate, at most, contributory negligence and does not preclude summary judgment in Claimant's favor.

Case information

UID: 2009-031-065
Claimant(s): HEATHER THOMAS
Claimant short name: THOMAS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) : The caption has been amended sua sponte to reflect the fact that the New York State Department of Transportation is not a proper Defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111715
Motion number(s): M-76838
Cross-motion number(s):
Judge: RENÉE FORGENSI MINARIK
Claimant's attorney: LIPSITZ GREEN SCIME CAMBRIA, LLP
BY: SHARON M. HEIM, ESQ.
Defendant's attorney: WALSH & MORENUS
BY: ROBERT GALLAGHER, JR., ESQ.
Third-party defendant's attorney:
Signature date: December 21, 2009
City: Rochester
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers, numbered 1 to 7, were read on motion by Claimant for partial summary judgment:

1) Claimant's Notice of Motion, filed June 18, 2009;

2) Affirmation of Sharon M. Heim, Esq., dated June 15, 2009, with attached exhibits;

3) Claimant's Memorandum of Law, dated June, 2009.

4) Affirmation of Robert E. Gallagher, Jr., Esq., dated August 12, 2009, with attached exhibit;

5) Defendant's Memorandum of Law, dated August 12, 2009;

6) Reply Affirmation of Sharon M. Heim, Esq., dated August 17, 2009;

7) Claimant's Reply Memorandum of Law, dated August 17, 2009.

BACKGROUND

Claimant, Heather Thomas, was injured in a workplace accident on July 30, 2005. At the time of the accident, Claimant was employed as a painter by Atlas Painting and Sheeting Corporation, a contractor for the State of New York, which had been hired to paint the I-590 bridge overpass at State Route 104 in the Town of Irondequoit. Ms. Thomas had been power-washing the bays underneath the overpass and was descending a 24-foot extension ladder when the ladder "kicked out" from underneath her, causing her to fall 10 to 11 feet to the ground below and sustain injuries. In her claim, she alleges violations of Labor Law 200, 240(1) and 241(6).

CLAIMANT'S MOTION

As a preliminary matter, I note that this claim identifies three Defendants, the State of New York, the New York State Thruway Authority and the New York State Department of Transportation. As the New York State Department of Transportation is not an entity separate and distinct from the State of New York, it is not a proper defendant and the caption has been amended sua sponte to reflect this fact. As this Court does have jurisdiction over the New York State Thruway Authority ("Thruway Authority") and it appears that the Thruway Authority was properly served in this matter, it is, at least for the time being, properly reflected as a Defendant in the caption. Nothing in the papers before me, however, indicates that the Thruway Authority owned the property in question, had any connection with the underlying contract in this matter, or had any connection with Claimant's work pursuant to that contract. Accordingly, the analysis of liability that follows relates only to Defendant State of New York.

With this motion, Claimant seeks partial summary judgment on liability relating to her Labor Law 240(1) cause of action. Labor Law 240(1) provides, in pertinent part:

"1. 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, 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."

The parties do not dispute that Claimant was painting a structure at an elevation at the time of the accident and that, accordingly, she was afforded the protections of that section. In support of her motion, Claimant asserts that the ladder, which had been set up by her supervisor, Ioannis Koutsomitis, "kicked out" because it was unsecured, placed on sloping ground, and on top of a wet tarp. Claimant further alleges that, although Mr. Koutsomitis would generally brace the ladder as she descended, on this occasion he was busy talking with other workers and an employee of the State and failed or refused to do so.

It is uncontroverted that the ladder was unsecured and "kicked out." It is also uncontroverted that Mr. Koutsomitis placed the ladder on top of a wet tarp on sloping ground. Defendant opposes Claimant's motion, however, alleging that Claimant failed to notify Mr. Koutsomitis that she was descending and needed him to brace the ladder. Defendant further alleges that Claimant "jumped" onto the first or top rung of the ladder while facing the wrong way (away from the ladder) (Koutsomitis EBT transcript, Exhibit 1, pp. 19 - 20). Accordingly, Defendant argues that Claimant's actions were the sole proximate cause of her accident.

I find that Claimant has met her burden of demonstrating that her injuries were proximately caused by Defendant's violation of the statute. The ladder upon which she was working was not placed or secured so as to provide Claimant with adequate protection. In this regard, I note that Claimant's supervisor, who was to have held the ladder for Claimant, cannot be considered a safety device (Kaminski v Carlyle One, 51 AD3d 473; McCarthy v Turner Const., Inc., 52 AD3d 333). "Labor Law 240 (1) requires that safety devices such as ladders be so 'constructed, placed and operated as to give proper protection' to a worker" (Klein v City of New York, 89 NY2d 833, 834 - 35). Defendant's failure to properly secure and place the ladder constituted a violation of 240 as a matter of law (Wasilewski v Museum of Modern Art, 260 AD2d 271).

I further find that Defendant's argument that Claimant was the sole proximate cause of her accident to be without merit. As the Appellate Division, First Department, has stated: "It does not avail defendants to argue that the manner in which plaintiff set up and stood on the ladder was the sole cause of the accident, where there is no dispute that the ladder was unsecured and no other safety devices were provided" (Vega v Rotner Management Corp., 40 AD3d 473, 474; see also Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135; Velasco v Green-Wood Cemetery, 8 AD3d 88).

Based upon the foregoing, it is

ORDERED, that Claimant's motion for partial summary judgment on liability is granted with respect to the State of New York, and is denied as against the New York State Thruway Authority.

December 21, 2009

Rochester, New York

RENÉE FORGENSI MINARIK

Judge of the Court of Claims