New York State Court of Claims

New York State Court of Claims

DUNPHY v. THE STATE OF NEW YORK, #2009-033-345, Claim No. 114001, Motion No. M-76159


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):

James J. Lack
Claimant’s attorney:
Brody, O’Connor & O’Connor, Esqs.By: Thomas M. O’Connor, Esq.
Defendant’s attorney:
Morenus, Conway, Goren & BrandmanBy: Keith J. Conway, Esq.
Third-party defendant’s attorney:

Signature date:
June 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries allegedly sustained on February 23, 2006, when Edward F. Dunphy, Sr. (hereinafter "claimant") fell from a ladder he was standing on which slipped and fell while installing electrical supply in a garage at the Heckscher State Park maintenance garage, East Islip, New York. The claim of Christine Dunphy is derivative in nature.

Claimants' motion for partial summary judgment is on the issue of liability pursuant to Labor Law §240(1)[1]. Claimant alleges that the defendant is absolutely liable for his injuries pursuant to Labor Law §240(1) in that the ladder slipped out from claimant.

At the time of his injury, claimant was on a ladder installing electric line conduits along the ceiling. The lines were to supply electric to a new hydraulic lift in the garage. Claimant was installing the conduit approximately eight feet above the concrete floor. According to claimant, the garage floor had an oily residue on it.[2]

Richard A. Comenzo[3] testified, in his deposition, cleaning of the floor varied day to day. Seasonal workers would be assigned to clean the floor some days, while on busier days, employees would be told to clean up after themselves.

The State, in its answering papers to the instant motion, opposes the motion for summary judgment. The State argues that the claimant is not entitled to summary judgement upon his cause of action for a violation of Labor Law §240(1) because claimant was the sole proximate cause of his accident. In addition, defendant argues that since claimant is the only witness to his accident, the Court must deny summary judgment.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

Labor Law §240(1) was adopted to provide protection for workers engaged in various tasks that entail a significant risk due to the relative elevation at which the tasks must be performed, or at which materials must be positioned or secured. These two types of risks are generally referred to as the falling object or the falling worker test. The purpose of the statute is to put the onus of protecting workers on the owner instead of the worker. A violation of this statute which proximately causes an injury imposes absolute liability upon the owner. In applying the statute, it is clear that the Court must construe the statute liberally to achieve its purpose (Quigley v Thatcher, 207 NY 66). The Court may not, however, interpret the statute to establish a right of recovery where it was not intended (Duda v John W. Rouse Constr. Corp., 32 NY2d 405).

Labor Law §240(1) states in part:
All contractors and owners...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.

In Klein v City of New York, 89 NY2d 833, the plaintiff placed a ladder on the floor. After the ladder slipped out from under plaintiff, he noticed a film or “gunk” coating the floor. The Court of Appeals held plaintiff had demonstrated a prima facie case defendant violated Labor Law §240(1). Plaintiff was the sole witness to the accident. The court held plaintiff’s version of the accident was neither inconsistent nor contradicted by other evidence. Thus, defendant was unable to present a triable issue of fact.

From the evidence before the Court, it is clear that no significant issue of fact exists in regard to how claimant's accident occurred as it pertains to Labor Law §240(1). The only version of the facts as to how claimant’s accident occurred is claimant’s version. Claimant was using a ladder in order to install conduits. Claimant was not in control of the maintenance of the floor of the garage. The maintenance of the floor was defendant’s responsibility. Even if the Court accepted defendant’s argument that claimant was negligent in placing the ladder, his negligence was not the sole proximate cause of the accident. According to claimant, the entire floor had an oily residue coating it.[4] The condition of the floor was due to defendant’s negligence.

The Claimant has established a prima facie case, pursuant to Labor Law §240(1), by showing that the ladder he was on moved and caused his fall (Madden v Trustees of Duryea Presbyterian Church, 210 AD2d 382).

The Court finds first that the claimant was engaged in work covered by Labor Law §240(1).

Next, the Court must determine whether the defendant has violated Labor Law §240(1), and if so, whether that violation is the proximate cause of claimant’s injuries. The Court reiterates that the uncontroverted evidence before the Court is the claimant’s version of the account of his accident. The parties agree that the ladder moved and the claimant fell. Therefore, the ladder, being unsecured and then falling, provided inadequate protection for the claimant for this particular task. The fall of the ladder was the proximate cause of the claimant’s injuries. Therefore, the Court grants claimants’ motion for partial summary judgment pursuant to Labor Law §240(1).

Based upon the foregoing, claimants' motion for partial summary judgment pursuant to Labor Law §240(1) is granted.

June 15, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers were read and considered on claimants’ motion: Notice of Motion dated January 12, 2009 and filed January 28, 2009; Affirmation of Thomas M. O’Connor, Esq. with annexed Exhibits A-H dated January 12, 2009 and filed January 28, 2009; Memorandum of Law of Thomas M. O’Connor, Esq. dated January 12, 2009 and received January 28, 2009; Affidavit of Edward Dunphy sworn to January 29, 2009 and filed February 2, 2009; Affirmation in Opposition to Plaintiff’s [sic] Motion for Summary Judgment of Keith J. Conway, Esq. with annexed Exhibits A-D dated February 13, 2009 and filed February 17, 2009; Reply Affirmation of Thomas M. O’Connor, Esq. dated February 23, 2009 and filed February 25, 2009.
[2].The garage was still in operation while claimant’s company was working.
[3].Richard A. Comenzo testified on behalf of the defendant in his capacity as motor equipment mechanic at the New York State Department of Parks and Recreation where he has been employed for 23 ½ years.
[4].Which is why claimant used a towel to wipe his shoes off before getting on the ladder.