New York State Court of Claims

New York State Court of Claims
BRITTING v. STATE OF NEW YORK, # 2021-053-515, Claim No. 133249, Motion No. M-96181, Cross-Motion No. CM-96255


Claimant's motion for partial summary judgment on the issue of liability under Labor Law 240 (1) is denied as questions of fact exist. The State's cross-motion for partial summary judgment dismissing the Labor Law 240 (1) is also denied due to the same issues of fact.

Case information

UID: 2021-053-515
Claimant(s): TRACY J. BRITTING
Claimant short name: BRITTING
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133249
Motion number(s): M-96181
Cross-motion number(s): CM-96255
BY: Ethan W. Collins, Esq.
Defendant's attorney: HON. LETITA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Third-party defendant's attorney:
Signature date: March 31, 2021
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Tracy J. Britting alleges in claim no. 133249 that he was injured on March 15, 2018 while working at Wende Correctional Facility (Wende) repairing a prison door. Claimant alleges that he was injured due to the negligence of the State of New York and violations of Labor Law 200, 240 (1) and 241(6).(1) Claimant moves by motion no. M-96181 for partial summary judgment under Labor Law 240 (1). Defendant opposes the motion and cross moves by motion CM-96255 for partial summary judgment dismissing the Labor Law 240 (1) cause of action. Claimant opposes the cross motion.

Deposition of Claimant, Tracey J. Britting

Claimant was accepted into the Ironworkers Local 6 Union in 1993. When he first joined the union, claimant had to undergo a four year apprenticeship. During this apprenticeship, claimant learned welding, rigging, structural, blueprint reading, ornamental, and rebar. In March of 2018, at the time of the accident, claimant was a certified welder. At that time, the Union dispatched him to work for Maximum Security Products Corporation (Maximum Security) at Wende. The job involved welding and some rigging (see claimant's deposition, Exhibit F, pp. 9-15). During the first week on this job, claimant tore out old overhead hatches and installed new ones. Throughout the project, claimant worked with his foreman, Paul Totten, whom claimant believed was a full-time employee of Maximum Security (Exhibit F, pp. 17-18).

On March 15, 2018, claimant and his foreman started the day by working on hatches, clean up and painting. Their last job of the day involved a prison steel door. Also present on this project was a prison guard. According to claimant's deposition testimony, there was always a prison maintenance man or a prison guard present while they worked (Exhibit F, pp. 22-25).

According to claimant, the job he and Mr. Totten were doing at the time of the incident involved taking a steel door off the door jam and repairing the hinges. They planned to use a zip wheel, cut off the old hinges, re-weld new hinges and put the new hinges on the door. Mr. Totten was going to do all the welding while claimant acted as his helper (Exhibit F, pp.. 26-27). The door they were working on was an outside door which led to the outside courtyard. The door swung out towards the courtyard. In order to work on the door, claimant and Mr. Totten brought with them an AC welder, grinders, chipping hammers, welding rod, welding hoods and plastic sawhorses. Claimant stated that he believed that the sawhorses belonged to Maximum Security and not to the prison. He did not know the brand name of the sawhorses, did not recall if they had stencil or a label, and did not see any writing on the sawhorses to show their maximum load (Exhibit F, pp.. 29-31). Claimant testified that he expressed to Mr. Totten his concern that the sawhorses were not going to hold the door. According to claimant, Mr. Totten replied "I do this all the time." Claimant did not check to see if the sawhorses were weight standard (Exhibit F, pp. 33-34).

Before cutting through the hinges, Mr. Totten set up the sawhorses in the prison courtyard. They were spaced apart in order to put the door on top of them. After cutting the hinges, claimant and Mr. Totter lowered the door to the ground. The bottom of the door rested on the ground. According to claimant, the door weighed about 300 pounds. Claimant described the door as steel, but he did not believe that it was solid steel. Claimant agreed that once the door is off the hinges, it rests on the ground and that the plan was then to lower the door onto the sawhorses and pick up the part of the door on the ground (Exhibit F, pp. 34-36).

According to claimant, he was standing on the hinge side of the door while Mr. Totten was standing on the door handle side. As the door was standing straight up, claimant and Mr. Totten began to lower the door onto the sawhorses when the door "got away from" them, came down, hit and crushed one of the sawhorses, threw Mr. Totten to the ground and landed on claimant's left foot (Exhibit F, pp. 37-38). The door never landed on the second sawhorse as it had been placed about six feet away from the first sawhorse. According to claimant, before the incident, claimant had a conversation with Mr. Totten during which he questioned whether the sawhorses were adequate. Claimant stated that he could have refused to use the sawhorses if he had wanted (Exhibit F, pp. 39-40).

Claimant testified that he never refused to use any safety device provided to him on this job. Claimant testified that he suggested to Mr. Totten that they use a roustabout which he described as a mini-forklift on wheels. He stated that it is hand cranked and has a cable. Claimant testified that the two sets of forks on the roustabout "would crank up through the cable" to lift the object and secure it (Exhibit F, pp. 53-54).

Accident Reports

Also attached to claimant's motion were copies of the Employee Accident/ Injury Report, a C-3 Workers' Compensation Employee Form and Maximum Security's job Quotation all enclosed Claimant's Exhibit G. According to the Employee Accident Report, "door on saw horse. Saw horse broke [sic], door fell on my left foot."


Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).

Labor Law 240 (1), commonly referred to as the scaffolding law, provides:

"All contractors and owners and their agents, except owners

of one and two-family dwelling 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."

Under Labor Law 240 (1), "the single decisive question is whether the [claimant's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Labor Law 240 (1) applies to both falling worker and falling object claims (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]). It does not, however encompass every accident connected in some tangential way with the effects of gravity and not "every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law 240 (1)". "[L]iability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Id. at 267).

Claimant's counsel argues in the memorandum of law that claimant testified during his deposition that he "asked his foreman whether the sawhorses were appropriate for their next task of hoisting the door and lowering it onto the sawhorses." Claimant never expressed any concern about hoisting. In fact, the word hoist or hoisting is not uttered once throughout claimant's deposition. Rather, claimant testified that his concern was whether the sawhorses were capable of handling the weight. Claimant further admitted that his foreman replied that he uses the sawhorses all the time (Exhibit F, pp. 33-34).

Claimant argues that the accident occurred when claimant and his foreman were lowering the door and the door "got away" from them, hit one of the sawhorses, threw the foreman to the ground, and landed on claimant's foot. According to claimant, the "object was to lay [the door] on the first sawhorse and then pick the door up like a casket and set it on both sawhorses" (Exhibit F, p. 39). At the time of the accident, claimant and his foreman were on either side of the door. Claimant, his foreman and the bottom of the door were all on the ground.(2) The issue presented is whether the facts of this claim fall within the limited purview of Labor Law 240 (1).

Claimant moved for partial summary judgment solely on the issue of liability under Labor Law 240 (1), and defendant cross moved for summary judgment to dismiss the Labor Law 240 (1) cause of action only. The Court concludes that on the limited facts presented, claimant has failed to meet his burden of proof on his motion as the submission of claimant's deposition only created issues of fact as to how the accident occurred, what equipment should have been furnished or erected to assist with that work, and whether claimant's "injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (see Smiley v Allgaier Constr. Corp., 162 AD3d 1481 [4th Dept 2018], citing Runner v New York Stock Exch., Inc., , supra at 603; see also Finocchi v Live Nation Inc., 141 AD3d 1092 [4th Dept 2016]). Based on these same issues of fact, the Court concludes that defendant failed to meet its burden of proof on the cross motion.

Accordingly, claimant's motion no. M-96181 and defendant's cross motion no. CM-96255 are denied.

March 31, 2021

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion no. M-96181 and affidavit of Ethan W. Collins, Esq. sworn to November 12, 2020, with annexed Exhibits A-J;

2. Claimant's Memorandum of Law dated November 12, 2020;

3. Defendant's notice of cross motion and affirmation of Assistant Attorney General Carlton K. Brownell, III, dated December 2, 2020; and

4. Affirmation of Ethan W. Collins, Esq. in opposition to defendant's cross motion in further support of claimant's motion dated December 7, 2020.

1. The caption is determined by the claim as it is filed. Claim no. 133249 as filed names only the State of New York as a defendant. Accordingly, the sole defendant is the State of New York. In the notice of intention to file a claim, claimant named the State of New York, the New York State Department of Corrections and Community Supervision (DOCCS) and the Attorney General as defendants. The same three parties are listed as defendants on the answer. In his notice of motion, claimant names the State of New York and DOCCS as defendants. DOCCS is not a separate entity and is sued in the name of the State and there are no separate allegations against the Attorney General in the claim. Regardless of the various captions used by the parties, the sole defendant is the State of New York as the State is the proper defendant and the only defendant named in the caption of the claim.

2. At paragragh 5 of claimant's attorney affirmation dated December 7, 2020 served in opposition to defendant's cross motion, it is agreed that claimant never left the ground and that the bottom of the door never left the ground.