New York State Court of Claims

New York State Court of Claims
TERWILLIGER v. THE STATE OF NEW YORK, # 2010-031-059, Claim No. 115308, Motion No. M-78066


In action based upon alleged violations of the Labor Law, questions of fact concerning what safety devices were available to Claimant on the day of his accident preclude judgment in Defendant's favor. Defendant's motion for summary judgment denied.

Case information

UID: 2010-031-059
Claimant short name: TERWILLIGER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115308
Motion number(s): M-78066
Cross-motion number(s):
Claimant's attorney: VALERIO & KUFTA, P.C.
Defendant's attorney: WOODS OVIATT GILMAN LLP
Third-party defendant's attorney:
Signature date: October 12, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 11, were read on motion by Defendant for summary judgment and dismissal of the claim:

1) Defendant's Notice of Motion, filed March 24, 2010;

2) Defendant's Statement of Material Facts, dated March 23, 2010;

3) Defendant's Memorandum of Law, dated March 23, 2010;

4) Affidavit of William G. Bauer, Esq., sworn to March 23, 2010, with attached exhibits;

5) Correspondence from William G. Bauer, Esq., dated March 29, 2010, with attached exhibit;

6) Affirmation of Mark J. Valerio, Esq., filed April 16, 2010, with attached exhibits;

7) Affidavit of Robert Terwilliger, sworn to April 14, 2010, with attached exhibit;

8) Affidavit of Thomas Saporito, sworn to September 24, 2009;

9) Claimant's Memorandum of Law, dated April 14, 2010;

10) Defendant's Reply Memorandum of Law, dated April 26, 2010;

11) Sur-Reply Affirmation of Mark J. Valerio, Esq., dated May 3, 2010.


Claimant, Robert Terwilliger, was injured on October 18, 2007, while working on a roofing project on Hartwell Hall at the State University of New York at Brockport ("Brockport"). At the time of the accident, Mr. Terwilliger, an employee of a contractor of the State (A. W. Farrell & Son, Inc.), was attempting to go from the east side of the roof to the west. Just after crossing over the peak, Claimant fell on the roof, slid approximately 40 feet, fell over the edge and landed on a scaffold six feet below. He suffered injuries and commenced this action alleging violations of Labor Law 200, 240(1) and 241(6).


With this motion, Defendant seeks summary judgment and dismissal of the claim in its entirety. I note that Claimant's counsel conceded that Defendant did not supervise or control Claimant's work on the day in question and, accordingly, Claimant has no viable cause of action under Labor Law 200.

With regard to Claimant's cause of action pursuant to Labor Law 240(1), that section provides, in pertinent part that:

"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 at an elevation on the roof of a commercial structure at the time of the accident and that, accordingly, he was afforded the protections of this section. In support of its motion, Defendant asserts that it provided Claimant with all appropriate safety devices, but that Claimant chose not to use them. Accordingly, Defendant argues that Claimant's actions were the sole proximate cause of his accident and that it is not liable for Claimant's injuries under Labor Law 240(1).

Specifically, through the use of Claimant's deposition transcript, Defendant asserts: that there were "chicken ladders" (two-by-fours nailed to the roof to assist workers going up and down) on both sides of the roof; that Claimant was given and was wearing an appropriate safety harness with an appropriate lanyard; that there was a guide wire across the top of the roof to which the lanyard could be attached; and that there were safety lines placed vertically across the roof to which his lanyard could also be attached. It appears that the guide wire permitted movement laterally across the roof, while the safety lines permitted movement up and down.

According to Defendant, Claimant was well aware of how to use these safety devices and had, in fact, used them without incident the day before the accident. Consequently, it is Defendant's position that Claimant was provided with appropriate safety devices but, because he refused to use them, his own conduct was the proximate cause of the accident.

With regard to the Labor Law 241(6) cause of action, there is no dispute that the construction work being performed falls under the protections of the statute. To establish a prima facie case under 241(6), Claimant must demonstrate that: 1) the Defendant violated the Industrial Code regulation; 2) that the code regulation is sufficiently specific; and 3) that the violation was the proximate cause of Claimant's injuries.

In support of his 241(6) cause of action, Claimant alleges that Defendant violated the following sections of the Industrial Code: 1) 12 NYCRR 23-1.7(d); 2) 12 NYCRR 23-1.16; 3) 12 NYCRR 23-1.24(a); and 4) 12 NYCRR 23-1.24(b).

The first of these sections, 12 NYCRR 23-1.7(d), requires the removal of slipping or tripping hazards from work walkways to provide safe footing. Defendant argues that the record shows there was no violation of this section because Claimant stepped on a roofing material made of felt which ripped, causing him to lose his balance and fall. Defendant contends that, because the felt was an integral part of the actual project in which Mr. Terwilliger was involved, the claim must fail (Gist v Central School Dist. No. 1 of the Towns of Elma, Marilla, Wales, Lancaster & Aurora, Erie County, & Bennington, Wyoming County, 234 AD2d 976).

The second section, 12 NYCRR 23-1.16, requires safety belts, harnesses, tail lines and lifelines. Defendant asserts that there was no violation of this section because all of the proper safety equipment was provided to Claimant, but Claimant chose not to use them.

The third section at issue, 12 NYCRR 23-1.24(a), requires roofing brackets unless crawling boards (chicken ladders) or approved safety belts are used. Defendant asserts that the crawling boards and approved safety belts were provided, therefore, the brackets were clearly not required.

The last section at issue, 12 NYCRR 23-1.24(b), requires a ground-supported scaffold which is no more than two feet below the exterior edges of the eves of the roof. The distance in this instance was six feet. However, Defendant asserts that an exemption to this requirement is provided in the language of the regulation itself, if the worker is provided with a harness and appropriate lifelines. Defendant contends that Claimant was provided with these items.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (DiSabato v Soffes, 9 AD2d 297, 301, appeal dismissed, 11 AD2d 660).

In response to Defendant's motion, Claimant argues that there are questions of fact that preclude dismissal of either cause of action. Specifically, Claimant contests Defendant's version of the operative facts. Claimant concedes that he was provided with, and used, all of the required safety equipment the day before the accident. However, Claimant contends that on the day of the accident, the safety equipment was in place on the east side of the roof only. As Claimant went up the east side without falling, the presence of safety equipment on that side is irrelevant. Claimant's intent at the time of the accident was to descend the west side of the roof to the scaffold below to access his tools in a gang box. Claimant contends that, although the guide wire was in place at the peak of the roof, this was of no assistance to him because the lanyard attached to his safety harness would permit movement of only about six feet. The gang box he was attempting to reach was more than 40 feet away. According to Claimant, because the chicken ladders and safety lines (which permitted up and down movement while attached to the harness) had been removed from the west side of the roof, he had nothing to tie onto and this is what caused the fall. In support of this argument, Claimant has submitted his own affidavit in which he states that there were no safety devices in place on the west side of the roof on the day of the accident. Claimant also provided the affidavit of one of his co-workers, Thomas Saporito, who states that he witnessed Claimant's fall and he did not see the appropriate safety measures in place at the time.

In its reply to Claimant's opposition, Defendant argues that Claimant's assertion that the safety devices were not in place on the west side of the roof is a "newly minted version" of the facts, but argues that, nonetheless, the case law demonstrates that Claimant was instructed to use the safety equipment and that it was available to him, even if not in place on the roof.

In response to this argument, Claimant asserts first that Defendant should not be permitted to raise a new argument (that the safety devices, although not in place, were nonetheless available) for the first time its reply papers (Whitely v Pieri, 48 AD3d 1175). Claimant also correctly argues that there is no evidence in the record that the safety devices were available on the day of the accident, where they were located, or that Claimant was instructed to get them.

I find that, although Defendant has demonstrated that Claimant was provided with all of the required safety equipment on the day before the accident, Claimant has successfully demonstrated that a question of fact exists as to what safety devices were immediately available or in place on the west side of the roof at the time of the accident. Accordingly, Defendant has failed to demonstrate that summary judgment is appropriate at this time.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion for summary judgment is GRANTED with regard to the Labor Law 200 cause of action only, and is, in all other respects, DENIED.

October 12, 2010

Rochester, New York


Judge of the Court of Claims