New York State Court of Claims

New York State Court of Claims

SHAMRAT v. THE STATE OF NEW YORK, #2009-036-506, Claim No. 113520, Motion No. M-75675


Case Information

1 1.The State of New York is the only proper defendant before the Court of Claims pursuant to Court of Claims Act § 9. The court, therefore, sua sponte amends the caption to eliminate the reference to other defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The State of New York is the only proper defendant before the Court of Claims pursuant to Court of Claims Act § 9. The court, therefore, sua sponte amends the caption to eliminate the reference to other defendants.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
By: Cheryl Rameau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this case alleging a violation of Labor Law §§ 240 (1) and 241(6) for defendant’s failure to provide proper protection to claimant while working at elevated heights on a ladder, after completion of discovery, claimant moves for partial summary judgment on the issue of liability.....[.] On February 13, 2007, claimant Emily Y. Shamrat was employed by Vishal Construction Inc. as a carpenter in the renovation of Kingsboro Psychiatric Center, a State facility located in Brooklyn, New York. His claim alleges that on that day the ladder he was working on collapsed beneath him, causing him to fall to the floor and become injured. Ex. A to Affirmation in Support, dated October 8, 2008 at ¶ 2. Claimant asserts causes of action against defendant, as owner of the premises and job site, based upon violations of Labor Law §§ 240 (1) and 241 (6), the latter by virtue of violation of Rule 23 of the New York Industrial Code (12 NYCRR §23), alleging defendant failed to provide the proper protection which the statute requires for a worker who was required to work at an elevated height. Id. Claimant argues that as a matter of law: (a) defendant’s failure to provide safety equipment and to ensure the ladder was properly placed to secure it against movement and provide proper protection violates Labor Law § 240 (1) (Klein v City of New York, 89 NY2d 833 [1996]); and (b) defendant’s failure to comply with “concrete specifications,” i.e. §§ 23-1.21(b)(4)(ii) and 23-1.21(e)(3) of the Industrial Code which delineate safety standards for the placement of ladders constitutes a violation of Labor Law § 241(6) (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]). Affirmation in Support at ¶¶ 13-18. Defendant opposes the motion arguing that with respect to the § 240(1) claim, just how this accident was caused is a question of fact, and with respect to the § 241(6) claim, there also are questions of fact as to whether the regulations were violated and what actually caused the accident. Affirmation in Opposition at ¶¶ 15 and 17-23.

On a summary judgment motion, movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment should be denied if there is any significant doubt whether there is a material, triable issue of fact. (Phillips v Kantor & Co., 31 NY2d 307, 311 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]). The papers submitted on a summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]).

There appears to be no claim that the ladder itself, a four-legged A-frame ladder, was defective. At his deposition, claimant testified that on the day of the accident he had been using the ladder prior to the accident and he also had used the ladder without incident two to three weeks prior to the accident. Claimant admitted he inspected the ladder and it did not shake or wobble.

The work claimant was required to perform involved screwing sheetrock to a wall at heights above eight feet using a screw gun. His ladder was to sit on a poured concrete floor which, according to claimant, was “somewhat rough.” He also asserted the floor was “not completely level” because “when I was using this gun and the screw, that’s when I felt [the ladder] shaking a little” immediately before the accident.

The issues here appear to be whether the actual condition of the concrete floor and/or the nature of the work claimant was required to perform while on the ladder was sufficiently problematic as to have rendered the ladder unsuitable to afford claimant “proper protections” under Labor Law § 240 (1), or to have violated regulations requiring firm, level footings under Labor Law § 241 (6), 12 NYCRR §§ 23-1.21 (b)(4)(ii) and 23-1.21(e)(3); or whether claimant himself was the sole cause of the accident. The court, having read claimant’s deposition, is persuaded these questions pose genuine issues of material fact that require a trial.

Claimant testified at his deposition that he had just finished attaching a piece of sheetrock to the wall without any problems. He explained the accident occurred as he was getting ready to use the screw gun to screw in a second piece of sheetrock. In order to attach the second piece he had to move the ladder. He climbed down and moved it three or four feet to the right. He was asked whether he had placed the ladder so that all four feet made contact with the floor and first he replied “not only did I place it on the floor properly, but I had also locked the brackets, the steel brackets”. He said he checked and the ladder did not move in any way. When asked again whether all four feet were in contact with the floor, he said “I really don’t have a clear recollection now because that was like the end of my shift.” He had climbed back up the ladder and placed one foot on the fourth step and the other foot on the third. He held the screw gun with his right hand above his head. He said he may have had to “tilt a little” to position the sheetrock on the wall. The accident occurred, he said, when he began using the screw gun. All this testimony from claimant himself raises a number of fact issues as to what actually caused the accident.
To recover on a cause of action pursuant to Labor Law § 240(1), the owner or contractor “must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries.” Robinson v East Medical Center, LP, 6 NY3d 550, 554 [2006]. “A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1).” Artoglou v Gene Scappy Realty Corp., 57 AD3d 460 [2d Dept 2008]; see Zgoba v Easy Shopping Corp., 246 AD2d 539, 541 [2d Dept 1998], where the court reversed summary judgment in favor of the plaintiff, holding “in the absence of evidence demonstrating that the ladder was actually defective, the issue of whether it provided the injured plaintiff with proper protection as required by [§ 240(1)] is a question of fact. . . .”; Sprague v Peckham Materials Corp., 240 AD2d 392, 393-394 [2d Dept 1997] “Given the absence of evidence demonstrating that the ladder was defective in any way, the issue of whether the ladder provided the injured plaintiff with proper protection as required under the statute is a question of fact for the jury.” (See Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 290 [2003] [“[I]f the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation”.....[.]]; Meade v Rock-McGraw, Inc., 307 AD2d 156, 159 [1st Dept 2003] [“Contrary to Supreme Court’s ruling, however, plaintiff did not establish a Labor Law § 240(1) violation for failure to secure the ladder. That the ladder was inadequately secured was due to plaintiff’s improper use of it, which would not give rise to a Labor Law violation.”])......[.]

With regard to claimant’s § 241(6) claim, the alleged violations are of 12 NYCRR §§ 23-1.21(b)(4)(ii) and 23-1.21(e)(3). The first section provides that “All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings.” The second section provides in part that “Standing stepladders shall be used only on firm, level footings.” Here again, claimant’s deposition testimony poses causation issues. At one point, he said that after he moved the ladder, all four feet were on the floor. Apparently he deduced the floor “was not completely level” because he felt the ladder “shaking a little” as he used the screw gun immediately before the accident. From this, it is not at all clear the ladder was not on firm, level footing. A determination must await trial........[.],........[.]

Clamant’s motion for partial summary judgment is denied. Trial is set for June 16-17, 2009. A Trial Preparation Conference is to be held on June 9 at 10 a.m.

January 16, 2009
New York, New York

Judge of the Court of Claims

[.]..... In deciding this motion the court read and considered the Notice of Motion, dated October 8, 2008, together with the Affirmation in Support, dated October 8, 2008 and exhibits annexed thereto; Defendant’s Affirmation in Opposition, dated November 7, 2008 and Ex. A annexed thereto; and Claimant’s Reply, dated November 18, 2008.

[.]...... In Blake, however, the Court of Appeals distinguished its decision in Bland v Manocherian (66 NY2d 452, 457 [1985]), where it considered “the nature of the work the plaintiff had to perform while on the ladder,” that is, pressure applied to window sashes at the same time windows forcibly were twisted loose, and that nothing was done to insure the ladder remain steady and erect while plaintiff applied pressure to the window. While claimant here ultimately may be able to show this case presents Bland-type liability, the court cannot reach that conclusion on the record before it without trial.

[.]....... The cases of Handley v J.N. White Associates, Inc., 288 AD2d 855 [4th Dept 2001], and Wallendorf v Isabel Fish Mfg. Co. Inc., 2 Misc 3d 129(A) [NY Sup App Term 2003]), relied upon by claimant (Reply at ¶¶ 7 and 8), are not on point. In each of those cases the court granted the plaintiff summary judgment where a ladder from which the plaintiff fell “was not so placed as to give proper protection” (Handley, 288 AD2d at 856) or “was not properly placed and secured” (Wallendorf, 2 Misc 3d 129(A)). Unlike the case at bar, however, in neither Handley and Wallendorf, was there an issue whether plaintiff was the one who may have placed the ladder improperly. As the Court of Appeals noted in Blake, 1NY3d at 290-91), the Pattern Jury Instructions reflect the interpretation that the issue of whether a plaintiff’s action was the only substantial factor in bringing about the injury is a question for the finder of fact. See PJI3d 2:217 [2006] [“If you conclude that the plaintiff’s action was the only substantial factor in bringing about the injury, you will find for the defendant on this issue.”]

[.]........ Claimant’s reliance on Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993], is not determinative with respect to whether claimant is entitled to summary judgment. That decision only stands for the proposition that provisions of the Industrial Code mandating compliance with “concrete specifications” (such as those cited by claimant) “give rise to a nondelegable duty” on the part of defendant. Id. at 505. What is at issue here is the cause of the accident.

[.]......... Unlike a claim under § 240(1), in a claim under § 241(6), at trial the court is permitted to consider whether claimant’s actions contributed to the happening of the accident even if his actions were not the sole proximate cause. Gittleson v Cool Wind Ventilation Corp., 12 Misc 3d 1195 (A), 824 NYS2d 768 [Sup Ct, Queens County 2006], affd, 46 AD3d 855 [2d Dept 2007], lv denied, 10 NY3d 715 [2008].