New York State Court of Claims

New York State Court of Claims


, # 2009-037-037, Claim No. 112120, Motion No. M-76872


Case information

UID: 2009-037-037
Claimant(s): In the Matter of the Claim of
Claimant short name: OLIN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK,
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112120
Motion number(s): M-76872
Cross-motion number(s):
Claimant's attorney: Lipsitz Green Scime Cambria LLP
By: James T. Scime, Esq. and
James M. VanDette, Esq.
Defendant's attorney: Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC
By: Michael T. Feeley, Esq.
Third-party defendant's attorney:
Signature date: November 16, 2009
City: Buffalo
Official citation: 82 AD3d 1682 (2011)
Appellate results: Affirmed
See also (multicaptioned case)


The following were read and considered with respect to Claimant's motion for partial summary judgment pursuant to 240 (1) of the Labor Law:

1. Notice of motion dated June 18, 2009 and affidavit of James T. Scime, Esq. sworn

to June 16, 2009, with annexed Exhibits A-J;

2. Claimant's memorandum of law dated June 16, 2009;

3. Opposing affidavit of Michael T. Feeley, Esq. sworn to July 1, 2009, with annexed

Exhibits A-E;

4. Defendants' memorandum of law dated July 1, 2009;

5. Reply affidavit of James T. Scime, Esq. sworn to July 7, 2009, with annexed Exhibit


Filed documents: Notice of Claim(1) filed March 23, 2006; Answer filed May 11, 2006;

Amended Answer filed May 11, 2006.

This is an action for personal injuries arising out of an incident which occurred on June 18, 2005 while the Claimant was employed as a journeyman painter by Avalotis Corporation (Avalotis). At the time of the incident, Claimant was sandblasting paint off one of the bridges that crosses Route 33 in the City of Buffalo, New York when he fell approximately 12 feet to the ground. Claimant brings this motion seeking partial summary judgment on his Labor Law 240 (1) cause of action.

A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, supra at 562). Every inference that can be reasonably drawn from the evidence presented should be viewed in the light most favorable to the non-moving party (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1983]).

Labor Law 240 (1) requires contractors, owners and their agents to provide safety devices in order to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object . . . . Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device 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 494, 501 [1993] [emphasis omitted]).

In the present case, the "Initial Notification of Work Zone Accident - Form A" (Claimant's Exhibit I) indicates that

"Contractor's equipment failure caused blaster to fall to ground (approx 12 ft) in between two rapid deployment 'V-decks'. During fall blaster was grazed with collapsable [sic] wing that separated completely from 'V-deck' unit."

" Blasting media load plus workcrew [sic] load caused hinges on collapsable [sic] wing of V-deck to fail."

At the time of the incident, two tractor-trailers had been placed side-by-side underneath the bridge to be sandblasted. On top of each truck was a V-deck platform upon which the blasters could stand to gain access to the bridge. Collapsible wings extended out from either side of the V-decks. When extended, the wings were supported by aluminum bars that ran from the edge of the wing to the truck.

According to his deposition testimony (Claimant's Exhibit F), Claimant was wearing a blasting hood and a respirator with two cartridges at the time of the incident. Claimant admittedly wore a harness and a lanyard the weekend before the incident while setting up the containment area, but denied wearing either at the time he fell and denied that Avalotis had a tie-off policy. Right before his fall, Claimant was blasting in the containment area when the blasters were turned off signifying lunch or a break. He was allegedly standing on planking that covered the gap between the extended wings of the V-decks. According to Claimant, the platform on which he was standing was a working platform and a means of moving from one V-deck to the other. No one from Avalotis had told him not to stand on this platform or on the extended wings that supported it. According to Claimant, when the power to his hose was shut off, his intention was to cross over to the V-deck which had the only ladder used to descend to the ground. Before he could cross over, the hinge welds of the wing under the planking on which he was standing gave way causing the wing to collapse and the Claimant to fall to the ground.

Claimant's coworker, Levi Richard Drew, testified at his deposition (Claimant's Exhibit A) that the wings of the V-deck, when extended, would lie flat with the top of the trailer. According to Drew, pieces of plywood were placed over the gap between the extended wings. Workers would walk across the plywood to get from one truck to the other. Drew testified that a third coworker was on the plywood crossing to the other truck with Claimant behind him when the wing gave way and the plywood fell causing Claimant to fall to the ground. The third coworker was able to grab onto the other truck and avoid a fall. Drew could not recall if Claimant was wearing a harness or lanyards and did not know if Claimant's tie-off device was working, but testified that no one could be tied-off 100% of the time and that the steel shot or the grit removed from the bridge would often prevent the tie-off device from being clamped into the D ring or from sliding properly.

In opposition to Claimant's motion, Defendants offered the affidavit of Louis Mavrokis, foreman for Avalotis on the date of the incident (see Defendants' Exhibit D). According to Mavrokis, Avalotis had a 100% mandatory tie-off program. Each employee was to have two lanyards affixed to his safety harness so when he traversed from one beam clamp to another he could tie to both and then remove the first clamp to make the transition to another tie-off area. The employee could not fall as long as one of the ties remained fixed. On June 10, 2005, eight days before the incident, Claimant acknowledged that he had been informed of the 100 % tie-off policy (Defendants' Exhibit A). Claimant was also shown an orientation video and acknowledged receipt of an employee handbook on June 10, 2005 (Defendants' Exhibit B). According to Mavrokis, there was a sufficient number of harnesses, lanyards, and beam clamps for fall protection on the day of the incident.

According to Mavrokis, the wings that extended from the V-decks were extended upward at a forty-five degree angle to allow the blast shot, paint chips and dust to flow down to the base of the V-deck for collection and recycling.(2) Mavrokis averred that Claimant was instructed not to place any weight on the wings which were merely fiberglass sheets with aluminum bracing. Access between the two V-decks was accomplished at the grate level by a flat metal surface known as a pike.

Mr. Mavrokis stated that it was not time for a break when the blasting stopped. Rather, he believed that a containment leak had occurred because he was in the process of climbing up the ladder to the wind screen area to determine why blasting had stopped at the time of the incident. As Mavrokis climbed, he allegedly saw Nick, another worker, jump over the gap between the wings which was covered by a tarp, touching a wing with his foot. At about the same time, Mavrokis saw the Claimant leaning on the wing to hand a blast shield face to another worker when the wing broke. According to Mavrokis, Claimant was wearing a harness and lanyards which were not tied off at the time of his fall.

Claimant argues that summary judgment is warranted regardless of the reason why he was not tied off because the V-deck was a fall protection device similar to a scaffold which failed and accordingly, Claimant's actions could not have been the sole proximate cause of the incident. The V-deck unit, however, did not fail. Rather, hinge(s) on one of the extended wings failed. If Claimant's deposition testimony is believed, then Claimant was standing on a piece of plywood supported by the wings when one of the wings collapsed and Claimant fell to the ground. While Claimant testified that no one advised him not to stand on the plywood or on the wings, Avalotis' foreman averred that all employees, including Claimant, were advised not to step on or place weight on the wings. It is Defendants' position that the wing was not a fall protection device within the purview of 240 (1) of the Labor Law and that Claimant would not have fallen had he complied with the 100 % tie-off policy. Defendants argue that Claimant is a recalcitrant worker and the sole proximate cause of his injuries.

Labor Law 240 (1) requires that a worker injured by a fall from an elevated height prove that the absence of or a defect in a safety device was the proximate cause of the injuries (Felker v Corning Inc., 90 NY2d 219 [1997]; Gittleson v Cool Wind Ventilation Corp., 46 AD3d 855 [2007], lv denied 10 NY3d 715 [2008]). The protection of the statute "does not extend to workers who have adequate and safe equipment available to them but refuse to use it" (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 366 [1982], appeal dismissed 58 NY2d 824 [1983]). Here the parties have presented vastly different versions as to how the accident occurred and of the safety protections or devices present and available. Any determination as to a violation of 240 (1) of the Labor Law must, therefore, ultimately rest on the Court's assessment of the credibility of the witnesses which is inappropriate on a motion for summary judgment (Ferrante v American Lung Assn., 90 NY2d 623 [1997]) and must await trial. On the record presented, the Court cannot conclude that Claimant has met his burden of establishing as a matter of law that his injuries were caused by the lack of enumerated safety devices, the proper operation and placement of which would have prevented the incident (Sniadecki v Westfield Cent. School Dist., 272 AD2d 955 [2000]). Accordingly, it is hereby

ORDERED, that Claimant's motion for partial summary judgment pursuant to 240 (1) of the Labor Law is denied.

November 16, 2009

Buffalo, New York


Judge of the Court of Claims

1. An action is commenced in the Court of Claims by the filing of a Claim, not a Notice of Claim.

2. Mr. Mavrokis' description of the configuration of the V-decks and particularly the placement of the wings at a forty-five degree angle is more consistent with the photographs provided by Claimant (Claimant's Exhibit J) and by Defendants (Defendants' Exhibit E) than is the description of the set-up given by Mr. Drew at his deposition (Claimant's Exhibit A).