Claimant's motion for summary judgment as to defendant's Labor Law 240 (1) liability is granted where uncontradicted ed facts show that claimant was injured while engaged in a statutorily covered activity when he fell approximately 6 feet from a mobile scaffold to the ground when a wheel became detached from the scaffold as the scaffold was being moved by co-workers and proof showed that Labor Law 240 (1) violation was a proximate cause of the accident.
|Claimant(s):||BYUNG CHOON JOE|
|Claimant short name:||JOE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||WILLIAM SCHWITZER & ASSOCIATES, PC
By: Jonathan H. Noble, Esq.
Barry Semel-Weinstein, Esq.
|Defendant's attorney:||LONDON FISCHER LLP
By: Tracy J. Weinstein
|Third-party defendant's attorney:|
|Signature date:||March 13, 2017|
|See also (multicaptioned case)|
Claimant moves for summary judgment on his Labor Law 240 (1) cause of action as to defendant's liability in this claim alleging negligence and Labor Law violations by defendant.
The claim alleges, among other things, that negligence and "violation of Labor Law statutes sections 200, 240 and 241" by the "State of New York" resulted in personal injuries to claimant "arising out of a fall incident on July 24, 2013 around 10:00 p.m. at WA Harriman State Office Campus Building 9, 4th Floor, 1220 Washington Avenue, Albany New York."
The facts necessary for determination of the claimant's motion are uncontradicted by any fact witness and are taken from the sworn statements of claimant, claimant's supervisor (Kwang Il Lee) and claimant's co-worker (Yoon Sung Lee(1) ), eyewitnesses to claimant's accident.
On July 24, 2013, claimant was employed by Gozzer Corporation as a laborer to perform asbestos removal work at premises owned by the defendant State of New York at 1220 Washington Avenue in the City and County of Albany and State of New York.
On that date, while so employed, claimant fell from a height of six feet to the ground from a mobile scaffold while performing his asbestos removal duties. Claimant was caused to fall when claimant's supervisor and co-worker Yoon Sung Lee began moving the scaffold, with claimant on the scaffold, and a wheel detached from the scaffold as claimant's supervisor and co-worker attempted to lift the scaffold over a hose and/or electric cord. The scaffold tipped, causing claimant to fall to the ground. The wheel detached from the mobile scaffold as the scaffold was moved and lifted, because a metal pin intended to secure the wheel to the mobile scaffold was missing.
Claimant testified at deposition that as the mobile scaffold tipped, he "felt some movement and I fell backward, I lost consciousness briefly." Claimant further testified that the mobile scaffold "landed on my legs" and that when he regained consciousness he "was lying on the floor."
Claimant's supervisor adds, in his affidavit, that claimant "fell on his right shoulder, neck and head which hit the floor first. The floor is made of concrete. The scaffolding platform fell on top of Mr. Joe."
As a result of his fall, claimant alleges, in his verified claim, that he sustained injuries to his "[n]eck, lower back, right elbow, right shoulder, left wrist."
In further support of his motion, claimant provides the affidavit of a "Certified Site Safety Manager with over thirty-six years of experience in safety, health and environmental management and site experience in the construction industry" (claimant's expert). Claimant's expert opines that the mobile scaffold failed to provide claimant proper protection from a "gravity/height related" accident because the "very fact that one of the wheels fell out of the scaffold frame's end posts shows that the scaffold was not maintained in a safe condition."
The standard for review of the claimant's motion is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
With respect to the applicable substantive law, Labor Law 240 (1) provides as follows:
"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."
In Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 ), the Court of Appeals explained that:
"The legislative purpose behind this enactment is to protect 'workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident' (Koenig v Patrick Constr. Co., 298 NY 313, 318)."
Courts are required to "liberally construe the statute to effect its purpose of protecting workers" (Hodges v Boland's Excavating and Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005] lv denied 6 NY3d 710 ).
The Court of Appeals recently reminded, in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521, 524 ), that:
"Labor Law § 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiff's accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant"
The Court finds that claimant has met his initial burden and made a prima facie showing of entitlement to summary judgment as to defendant's liability under Labor Law 240 (1), by offering uncontradicted fact proof that claimant fell six feet to the ground from a mobile scaffold, and was injured as the scaffold was being moved by claimant's supervisor and co-worker as claimant stood on the scaffold. The sworn accounts of claimant and his supervisor show that the scaffold tipped over when a wheel detached from the scaffold frame due to a missing pin intended to secure the mobile scaffold's wheel to the scaffold frame. The claimant's proof includes the sworn eyewitness statements of claimant and his supervisor, together with the expert opinion of claimant's construction safety expert.
In Ball v Cascade Tissue Group-New York, Inc. (36 AD3d 1187, 1188 [3d Dept 2007]) the court, in reversing the trial court's denial of plaintiff's Labor Law 240 (1) summary judgment motion, followed well-settled law providing that:
"Where, as here, the worker has been provided with a safety device, whether the device afforded proper protection is ordinarily a question of fact to be resolved at trial . . . However, where the uncontroverted evidence establishes that the safety device collapsed, slipped or otherwise failed to support him or her, the plaintiff demonstrates a prima facie entitlement to partial summary judgment under Labor Law § 240 (1)."
Haulotte v Prudential Insurance Company Of America (266 AD2d 38, 38-39 [1st Dept 1999]), involved a fact pattern similar to that presented in claimant's motion. A worker was injured in a fall from "a four-foot high mobile scaffold that did not have guard rails and the wheels of which were not in the locked position, when a co-worker, with whom plaintiff had been drinking about an hour and a half earlier, attempted to reposition the scaffold to install ceiling tiles without realizing that plaintiff was on top." As in Haulotte, the prima facie evidence submitted by claimant in the instant case "is sufficient to permit a finding that the scaffold was placed, within the meaning of Labor Law § 240 (1), by a co-worker in a manner that did not give proper protection to plaintiff, and that such placement was the proximate cause of plaintiff's injuries"
In opposition to claimant's motion, defendant argues that "claimant's motion for partial summary judgment must be denied because of . . . inconsistencies which show there are issues of fact."
The Court notes that: "The law is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof to demonstrate that the matters alleged are real and capable of being established upon a trial" (Couch v Schmidt, 204 AD2d 951, 952 [3d Dept 2004]). Further, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 ).
In opposing the claimant's motion, defendant primarily relies upon the hospital records of the Albany Medical Center Hospital where claimant was transported by ambulance and where he was examined and treated on the day of the accident, together with the affidavits of two doctors who reviewed claimant's records, but did not examine claimant. Defendant asserts that these records, including x-rays and ct scans, allegedly show that claimant "did not sustain any acute trauma on the date of the alleged accident." Defendant also submits the affidavit of a mechanical engineer who opines that "claimant's accident and injuries could not have occurred in the manner in which claimant, Yoo Suk Lee, and Kwang Il Lee have testified to."
While defendant's submissions arguably show that claimant's alleged injuries were minimal and transitory, defendant offers no proof directly contradicting the central allegations made by claimant: Claimant fell from a height of six feet to the ground due to a defective and improperly placed scaffold while performing an activity covered by Labor Law 240 (1); claimant lost consciousness and was transported to the Albany Medical Center Emergency room by ambulance where his discharge summary shows that he complained of pain in his neck and right arm with a severity of 7 on a scale of 10. Claimant's Albany Medical Center Emergency room discharge summary diagnosis was "Musculoskelatal pain status fall [and] [l]eft elbow contusion."
Claimant's colleagues, supervisor Kwang Il Lee and co-worker Yoon Sung Lee, gave very specific and detailed descriptions of how claimant's accident occurred, including how the lifting of the scaffold over a floor obstacle caused the scaffold to lose a wheel which was unsecured to the scaffold, and how that, combined with the movement of the scaffold, caused claimant to fall from the scaffold to the floor. Additionally, their descriptions were consistent with the circumstances claimant described as existing immediately prior to and at the time of his fall from the scaffold.
Significantly, while the affidavits of defendant's doctors question the nature or origin of certain of claimant's medical conditions and question the severity of claimant's injuries, and intimate that claimant was less injured than would be expected from a six-foot fall, those opinions are insufficient to raise an issue of fact as to whether, how and why claimant fell, or to raise an issue of fact whether claimant endured a fall from height under circumstances covered by Labor Law 240(1).
Similarly, while defendant's engineering expert questions the eye witnesses' descriptions of how claimant was caused to fall, his opinion amounts to speculation and is also, as with defendant's expert medical opinions, insufficient to raise an issue of fact whether claimant endured a fall from height under circumstances covered by Labor Law 240(1).
Defendant's opposition to the claimant's motion for partial summary judgment fails to raise an issue of fact requiring a trial as to defendant's liability under Labor Law 240 (1).
The Court finds, as a matter of law, that the defendant is liable for a violation of Labor Law 240 (1) and that the statutory violation was a proximate cause of claimant's accident and injuries.
Accordingly, claimants' motion for summary judgment as to defendant's liability on claimant's Labor Law 240 (1) cause of action is granted.
March 13, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed January 15, 2016;
2. Affirmation of Jonathan H. Noble, dated January 15, 2016, and attached exhibits;
3. Affidavit of Kwang Il Lee, sworn to October 2, 2014;
4. Affidavit of Kathleen Hopkins, sworn to January 15, 2016;
5. Affirmation in Opposition of Tracy J. Weinstein, dated September 1, 2016, and attached exhibits;
6. Affidavit of Gordon Sze, sworn to August 11, 2016, and attached exhibit;
7. Affidavit of Stephen W. Lastig, sworn to August 31, 2016, and attached exhibit;
8. Affidavit of Thomas J. Bress, sworn to August 12, 2016, and attached exhibit;
9. Letter of Tracy J. Weinstein, dated October 11, 2016, and attachments;
10 Reply Affirmation of Barry Semel-Weinstein, dated November 7, 2016, and attached exhibits;
11. Affidavit of Robert J. O'Connor, sworn to October 28, 2016, and attached exhibit;
12. Affirmation in Further Opposition of Tracy J. Weinstein, dated December 13, 2016, and attached exhibits;
13. Reply Affirmation of Barry Semel-Weinstein in Response to Defendant's Further Opposition, dated December 28, 2016, and attached exhibits.
1. Spelled differently at different locations in submitted papers. The Court used the name as spelled on the witness's deposition.