|Claimant short name:||DENNIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Kazmierczuk & McGrath
By : Katherine M. McGrath, Esq. and
John P. McGrath, Esq.
|Defendant's attorney:||Mulholland, Minion and Roe
By: John A. Beyrer, Esq.
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)||2010-033-409|
These claims arise from injuries sustained on August 1, 2007, when Byron Dennis and Godfrey Arnold (hereinafter "claimants") were injured as the result of defendant's alleged negligence on the Wantagh Bridge, Wantagh, New York. The claims allege violations of Labor Law §§ 240(1), 241(6) and 200.
On the day of the accidents, claimants were working on the underside of the Wantagh Parkway Bridge. In order to gain access to the underside of the bridge, claimants were in the basket of a hydraulic man lift. The basket was attached to a boom and the man lift was on a barge under the bridge. While claimants were engaged in their work, a police boat passed by the barge at a high rate of speed. The speed of the boat caused a strong wake which slammed into the barge. The force of the wake caused the barge to move. The man lift was caused to slam against the girders under the bridge. Claimants ducked down into the basket. The man lift began to lift off the deck of the barge to one side. The man lift toppled into the water taking claimants with it. Claimants were wearing flotation devices and thus, after being submerged for a few seconds, floated to the surface where they were rescued by a tugboat.
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).
From the evidence and arguments presented, it is clear that a significant issues of fact exist to prevent the Court from granting summary judgment to either party. While claimants cases are compelling, there is evidence presented which would suggest tying down the man lift may have been worse. Therefore, an issue of fact exists as to whether or not the man lift should have been tied down. Defendant has failed to present a prima facie entitlement to summary judgment.
Based upon the foregoing, claimants' motion and defendant's cross-motion for summary judgment are denied.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on claimants' motion: Notice of Motion dated February 24, 2010 and filed February 25, 2010; Affirmation of Katherine M. McGrath, Esq. with annexed Exhibits A-L dated February 24, 2010 and filed February 25, 2010; Affirmation in Opposition of John A. Beyrer, Esq. dated February 26, 2010 and filed March 2, 2010.
2. The following papers have been read and considered on defendant's cross-motion: Notice of Cross-Motion dated February 26, 2010 and filed March 2, 2010; Affirmation in Support of John A. Beyrer, Esq. dated February 26, 2010 and filed March 2, 2010; Affirmation in Opposition to Cross-Motion of John P. McGrath, Esq. dated March 24, 2010 and filed March 25, 2010; Affirmation and Reply of John A. Beyrer, Esq. dated April 13, 2010 and filed April 15, 2010.