New York State Court of Claims

New York State Court of Claims
SCHMITT v. THE STATE OF NEW YORK, # 2009-031-068, Claim No. 115200, Motion No. M-77185


Claimants demonstrated that Defendant State of New York violated section 240(1) of the Labor Law by failing to ensure that appropriate safety devices were provided to Claimant while installing a roof. Defendant's allegations concerning the manner in which Claimant performed his work, demonstrate, at most, contributory negligence and do not preclude summary judgment in Claimant's favor.

Case information

UID: 2009-031-068
Claimant short name: SCHMITT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115200
Motion number(s): M-77185
Cross-motion number(s):
Claimant's attorney: HITE & BEAUMONT, P.C.
Defendant's attorney: LIPPMAN O'CONNOR
Third-party defendant's attorney:
Signature date: December 31, 2009
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimants for partial summary judgment:

1) Claimants' Notice of Motion, filed September 10, 2009;

2) Affidavit of John H. Beaumont, Esq., sworn to September 2, 2009, with attached exhibits;

3) Affidavit of Marc A. Schmitt, sworn to July 15, 2009;

4) Claimants' Memorandum of Law, dated September 2, 2009;

5) Affirmation of Matthew J. Duggan, Esq., dated September 14, 2009;

6) Reply Affidavit of John H. Beaumont, Esq., sworn to September 16, 2009;


Claimant, Marc A. Schmitt, was injured in a workplace accident on October 17, 2007.(1) At the time of the accident, Claimant was employed by Massa Construction, Inc., a contractor for the State of New York, which had been hired by Defendant to build an addition to the New York State Department of Transportation offices located at 125 Parrish Street in Canandaigua, New York. Mr. Schmitt, who was working on the roof of the new addition at the time, was attempting to cut the protective wrap off a stack of foam sheets that had been placed on the roof. The foam sheets were part of the sub layer of the new roof. As he was cutting the wrap, Mr. Schmitt stepped backwards off the roof and fell approximately 17 feet to the ground below and sustained injuries. In his claim, he alleges violations of Labor Law 200, 240(1) and 241(6).


With this motion, Claimant seeks partial summary judgment on liability relating to his 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 working on the roof of a commercial structure at an elevation at the time of the accident and that, accordingly, he was afforded the protections of that section. In support of his motion, Claimant asserts that Defendant failed to provide him with any safety devices to protect him from the risks of falling off the roof. It is uncontroverted that there was a lift at the work site used to transport the workers between the ground and the roof and that the workers were outfitted with harnesses and short lanyards to attach to that lift when they went up to or down from the roof. It is also uncontroverted, however, that these provided no protection to the workers once they were on the roof. In this regard, I note that the lanyards were of insufficient length to permit more than 2 feet of movement outside of the lift to which they were attached.

Defendant opposes Claimant's motion, alleging that Claimant's own negligence in walking backwards off the roof was the sole proximate cause of the accident.

I find that Claimant has met his burden of demonstrating that his injuries were proximately caused by Defendant's violation of the statute. Labor Law 240 requires that safety devices 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 provide Claimant with any safety devices (at least in the portion of the roof where he was working) 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 his accident to be without merit. The fact that Claimant stepped backwards off the roof demonstrates, at most, comparative negligence, which is not a defense to a Labor Law 240(1) cause of action (Raquet v Braun, 90 NY2d 177; Brandl v Ram Builders, Inc., 7 AD3d 655). To establish that Claimant was the sole proximate cause of his injuries or a "recalcitrant worker," Defendant was required to show that Mr. Schmitt "deliberately refused to use available safety devices" (Akins v Central N. Y. Regional Mkt. Auth., 275 AD2d 911) or that he chose to disregard specific instructions to use a certain safety device (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39). Here, Claimant did not fail or refuse to use a provided safety device, he simply was not provided with any. As the Appellate Division, Fourth 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.

December 31, 2009

Rochester, New York


Judge of the Court of Claims

1. Claimant Irene Schmitt's claims are entirely derivative. Accordingly, any use of the singular "Claimant" refers to Marc A. Schmitt, unless otherwise specified.