New York State Court of Claims

New York State Court of Claims
MELL v. THE STATE OF NEW YORK AND THE NEW YORK STATE THRUWAY AUTHORITY, # 2010-029-056, Claim No. 114870, 114871, Motion Nos. M-78115, M-78089, M-78429


Defendant's motion for summary judgment in this Labor Law claim is denied. The evidence does not rule out the possibility that defendant will be able to establish a sole proximate cause defense at trial.

Case information

UID: 2010-029-056
Claimant(s): SAMUEL MELL, JR.
Claimant short name: MELL
Footnote (claimant name) :
Footnote (defendant name) : The court has removed the unnecessary reference to the Department of Transportation from the caption of Claim No. 114871.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114870, 114871
Motion number(s): M-78115, M-78089, M-78429
Cross-motion number(s):
Claimant's attorney: SACKS and SACKS, LLP
By: Daniel Weir, Esq.
Defendant's attorney: FABIANI COHEN & HALL, LLP
By: Mary J. Joseph, Irvin Lederer and Marc M. Mahoney, Esqs.
Third-party defendant's attorney:
Signature date: December 1, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for an order granting partial summary judgment pursuant to Labor Law sections 240(1) and 241(6). In addition to opposing the motion, defendants move for further disclosure on damages and for an open commission to take a deposition in New Jersey of a representative of claimant's union pension fund.

Claimant, an ironworker employed by a construction company known as Yonkers Contracting Co./Dragados, was allegedly injured on February 6, 2008 when he fell from a steel girder while working on a construction project on Interstate 287, the Cross Westchester Expressway. He testified at his deposition that he has been an ironworker since 1974 and that he worked on the I-287 job for about six months prior to his February 2008 injury, mostly erecting new steel with some dismantling. He arrived at work about 6:30 a.m. on the date in question, met with his foreman Robert Taylor, and received his assignment for the day, which was to prepare steel diaphragms for dismantling by burning them with a welding torch, a process that required claimant to carry a welding line and torch onto a steel girder about 30 inches wide, about 10 feet above the roadway. Above the beam was a spiral of rebar, what claimant called "the slinky thing" (Exhibit 4, p 20, EBT of claimant taken October 8, 2008), to which claimant tied one end of his lanyard, the other end being attached to his safety harness. At the time of his injury, he had finished burning one end of a diaphragm and had to move to the other end, seven feet away. In order to do so, claimant had to unhook his lanyard - "I had to. There is no way I could move without unhooking it" (id., p 29). Claimant walked to the other side of the girder and as he took a step he slipped on the girder, wet from earlier rain, and fell.

Claimant testified that the men had been provided with a scissor lift to access the girders on the day before his accident but that the foreman was not satisfied with how much work had been done that day, which he blamed on the lift, and that was the reason no lift was provided the next day.

Moving for summary judgment, claimant contends that he was not provided with adequate safety devices properly placed so as to provide adequate protection against the danger of falling from the girder, as required by section 240(1), and that defendants further violated section 23-1.16(b) of the Industrial Code, requiring that safety lines be properly attached to a secure line when in use.

Defendants do not dispute that claimant was injured when he fell approximately 10 feet from the girder and that at the time of his fall his lanyard was attached only to his harness. Nevertheless, defendants contend that the sole reason that claimant was not attached to a secure line at the time of his fall was because he decided, unnecessarily, to unhook his lanyard in order to change locations, that claimant was supposed to return to the ground before untying and moving to the new location, not walk across the girder untied, that claimant had been trained in proper procedure and knew what he was supposed to do and that his actions in this regard were the sole proximate cause of his injuries, relieving defendant of liability.

In addition to his own deposition, claimant submitted the deposition of Larry Mercilliott, an engineer with Boswell Engineering, retained by the State Department of Transportation to "inspect, administer and control the project for the State of New York" (Exhibit 5, p 5). He testified that it was his understanding that all workers on this job had to complete a ten-hour OSHA safety course, but that was the responsibility of the contractor and he had no direct knowledge of any training claimant might have received.

Asked if there was "any device at this particular bridge that would assist a worker after unhooking from the spiral rebar to move from one location to another and remain attached to some type of protective device," Mercilliott responded: "No. However, the workers are supposed to have double lanyards so they can traverse and always be tied off" (id., p 31). He stated that if an injured worker did not have a double lanyard, that would be a "serious issue" and something that Mercilliott would "want to be in the accident report" (id.), but there is no mention of any double lanyard requirement in any accident report concerning this accident.

Mercilliott testified that three days prior to claimant's accident, he stopped work on the job because he saw an iron worker out on the steel with no safety cable. He stated he spoke with a Yonkers superintendent who said that fall protection was not required on a demolition operation. Mercilliott stated that he told the superintendent he was incorrect and that fall protection was required for any worker greater than six feet above ground, and he then had the resident engineer remove the offending worker from the job. Mercilliott suggested after this incident that an independent safety cable system, or scissor lifts, be utilized to provide proper fall protection as opposed to tying the lanyards to the spiral rebar. He stated that safety lines had been installed at other locations on this job and that a number of man lifts were in use at various locations on this large job site.

Opposing the motion, defendants submitted affidavits from John Chrysogelos, Jr., Assistant Vice President and Corporate Safety Director for Yonkers Contracting Co. and Daniel M. Paine, an engineer identified as defendants' "expert witness." (2) Although he had no direct knowledge of claimant's accident, Chrysogelos submitted that he was familiar with his company's safety practices and procedures, including fall protection practices, as well as the protocol in effect on the job on the date of claimant's injury. He went to the accident scene shortly after the accident and then spoke with claimant in the hospital.

According to Chrysogelos, all workers, including claimant, were required to undergo fall protection training and were supplied with harnesses, six-foot lanyards and other safety equipment. The protocol on the job required all workers to wear the harnesses and lanyards whenever working at a height and Chrysogelos submitted that claimant "could have (and should have) been tied off when his accident occurred" (Exhibit A, p 4). Specifically, he contended that instead of violating safety policy and walking across the beam while unhooked, claimant "could and should have remained tied off, walked back down the beam he had been working on to the end of the bridge where he had hooked up his lanyard, and unhooked himself at that location when he was on the ground . . walked on land, to the adjacent beam, tied himself off, and only then walked out on the beam to the area where he was going to continue his work" (id., pp 4-5). Chrysogelos further states that when he visited claimant in the hospital, claimant "admitted to me that the accident occurred because he unhooked his safety lanyard from its tie off point . . . [and] that he 'knew better' " (id., p 4).

Replying to defendants' opposition to his motion, claimant argues strenuously that Chrysogelos's allegations are fabricated, litigation driven and not substantiated by other testimony. Claimant notes that there is no indication in the two submitted accident reports (completed by Mercilliott and his supervisor, Exhibit 6) that claimant was not following proper safety protocols prior to his injury and further contends that Mercilliott's testimony that he had recommended that independent lines or scissor lifts be utilized establishes that claimant was not provided with proper protection on the date in question.

* * *

Summary judgment is often described as a "drastic remedy" because it deprives a party of its day in court. A party seeking summary judgment has the burden of making a prima facie showing that he is entitled to judgment as a matter of law, offering evidence sufficient to show the absence of any material issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). It is often stated that the court's role on a summary judgment is issue-finding rather than issue-determination and that the motion must be denied if there is any doubt as to the existence of an issue of material fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]); and that the evidence must therefore be construed in a manner most favorable to the party opposing summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). Thus, in considering the submissions on a summary judgment motion, the court "must accept as true the evidence presented by the nonmoving party, and the motion must be denied if there is even arguably any doubt as to the existence of a triable issue" (Baker v Briarcliff School Dist., 205 AD2d 652, 653).

Although claimant's initial submission establishes that he was injured while working without proper protection in a fall from an elevated work site,

"[w]here a 'plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law 240 (1) [does] not attach' (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). Instead, 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. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them."

(Robinson v East Medical Center, LP, 6 NY3d 550, 554).

In order to establish a sole proximate cause defense to a 240(1) case, a defendant must show that " the safety devices that plaintiff alleges were absent were readily available at the work site . . . , and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff's own negligence is the sole proximate cause of his injury" (Gallagher v New York Post, 14 NY3d 83, 88).

Here, defendants argue, and have submitted admissible evidence in support of their argument, that claimant for no good reason chose to misuse the safety equipment with which he had been provided, ignoring what he had been trained to do and that if he had not misused the equipment and proceeded in the manner described by Chrysogelos, his employer's safety director, he would not have been injured. While claimant would have the court consider the credibility and reliability of defendants' evidence and weigh the evidence against the evidence submitted by claimant, such an approach would clearly and necessarily cross the line from issue finding to issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). "A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' " (Tunison v D.J. Stapleton, Inc., 43 AD3d 910), as is the case here with respect to the alleged facts relating to both statutes relied upon by claimant. Accordingly, the motion for summary judgment is denied.

Defendants' application for an open commission for the purpose of taking a deposition of a representative of the District Council Ironworkers' Funds of Northern New Jersey, unopposed, is granted. Counsel may submit an appropriate order, on five days notice to claimant.

Defendants' motion for an order directing further disclosure on damages is denied at this time. Claimant represents that all requested authorizations have been provided and the sole issue is defendants' request for a further deposition occasioned by a supplemental bill of particulars outlining future anticipated damages. After a determination of liability, the parties will be afforded the opportunity to finalize preparation of the damages aspect of the claim. Practice in this court, where there is no jury trial and thus a necessary delay between a liability determination and a damages assessment, allows for such an approach and it is not expected that parties' trial preparation with respect to damages will be completed in all cases until after a liability determination. Accordingly, defendants' request for a further deposition is denied at this time, without prejudice to revisiting the issue in the future.

To summarize, M-78089 is granted; M-78115 and M-78429 are denied.

December 1, 2010

White Plains, New York


Judge of the Court of Claims

Papers considered:


Notice of Motion, Affirmation, Exhibits and Memorandum of Law

Affirmation in Opposition and Exhibits

Reply Affirmation


Notice of Motion, Affirmation end Exhibits


Notice of Motion, Affirmation and Exhibits

Affirmation in Opposition and Exhibits

2. The court did not consider Paine's affidavit, as such was not necessary to decide the motion. The court notes that his identity was apparently not disclosed to claimant prior to the filing of the note of issue and that it would have been at least arguably improper to consider his affidavit for that reason alone (see Yax v Development Team, Inc., 67 AD3d 1003; Construction by Singletree, Inc. v Lowe, 55 AD3d 861), although neither party addressed the issues of willfulness and prejudice (see Browne v Smith, 65 AD3d 996).