Opinion
# 2021-040-011 Claim No. 129174 Motion No. M-94854
03-10-2021
MARK BUONATO v. THE STATE OF NEW YORK
SACKS AND SACKS, LLP By: Daniel Weir, Esq. GOLDBERG SEGALLA LLP By: Jonathan M. Bernstein, Esq.
Synopsis
Claimant's Motion seeking partial summary judgment on a Labor Law § 240(1) Claim granted.
Case information
| UID: | 2021-040-011 |
| Claimant(s): | MARK BUONATO |
| Claimant short name: | BUONATO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | By Decision and Order dated May 23, 2017, the Court granted the Pre-Answer Motion by the New York State Thruway Authority to dismiss the portion of the Claim asserted against it (Buonato v State of New York and New York State Thruway Authority, UID No. 2017-040-058 [Ct Cl, McCarthy, J., May 23, 2017]). |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129174 |
| Motion number(s): | M-94854 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | SACKS AND SACKS, LLP By: Daniel Weir, Esq. |
| Defendant's attorney: | GOLDBERG SEGALLA LLP By: Jonathan M. Bernstein, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | March 10, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for partial summary judgment on the issue of liability pursuant to New York Labor Law § 240(1), is granted.
The Claim, which was filed in the office of the Clerk of the Court on January 17, 2017, alleges that, on November 4, 2016, Claimant was an employee of P.S. Bruckel, Inc. (hereinafter, "Bruckel") and that Bruckel was hired by Defendant to perform construction work to a truss bridge located in Washington County, New York (Claim, ¶ 3). It is further alleged that, due to Defendant's negligence, while Claimant was on the bridge, the scaffold upon which he was working collapsed, causing Claimant to fall into the water below the bridge (id.). The Claim asserts causes of action for violations of Labor Law §§ 200, 240 and 241(6) (id.).
The Claim incorrectly identified the employer as PF Brucker.
Claimant has moved for summary judgment as to liability on his Labor Law § 240(1) cause of action. CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). As pointed out by Defendant in counsel's Affirmation in Opposition, Claimant did not submit a copy of the Answer (Affirmation of Jonathan M. Bernstein, Esq. [hereinafter, "Bernstein Affirmation"], ¶ 3). Generally, the failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]). However, the failure to include pleadings may be excused by the Court if the record is "sufficiently complete" to address the merits (Crossett v Wing Farm, Inc., 79 AD3d 1334, 1335 [3d Dept 2010]; Sanacore v Sanacore, 74 AD3d 1468, 1469 [3d Dept 2010]; Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). CPLR 2001 "permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced" (Montalvo v Episcopal Health Servs., Inc., 172 A.D.3d 1357, 1359 [2d Dept 2019]; Sensible Choice Contr., LLC v Rodgers, 164 AD3d 705, 706-707 [2d Dept 2018]; Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688, 691 [2d Dept 2014] [internal quotation marks omitted], lv denied 25 NY3d 914). Here, although Claimant failed to include a copy of Defendant's Answer with his Motion for summary judgment, not only was it electronically filed and available to the Court, but it also was attached to the Reply Affirmation of counsel (Ex. 1). Thus, the record is sufficiently complete, and there is no evidence that a substantial right of Defendant was prejudiced by the Claimant's failure to submit a copy of Defendant's Answer with his motion papers (Sensible Choice Contr., LLC v Rodgers, supra [electronic filing]; Studio A Showroom, LLC v Yoon, 99 AD3d 632 [1st Dept 2012] [electronic filing]; Montalvo v Episcopal Health Servs., Inc., supra [pleadings attached to reply papers]; Pandian v New York Health & Hosps. Corp., 54 AD3d 590, 591 [1st Dept 2008] [pleadings attached to reply papers]), and the Court will consider the Motion for summary judgment.
Claimant's counsel, in his Affirmation in Support, more specifically identifies the bridge where Claimant was working on November 4, 2016 as the Smiths Basin Bridge (hereinafter, "the Bridge") located near Lock 9 on Route 149 on the Champlain Canal in the Town of Kingsbury, Washington County, New York (Affirmation in Support of Daniel Weir, Esq. [hereinafter, "Weir Affirmation"], ¶ 2). As previously noted, it is further asserted that Claimant was injured when the scaffold upon which he was working collapsed, causing him to fall into the water below (id., ¶ 3). Counsel further asserts that Claimant's Claim arises out of the same accident as the Claim filed in the Court of Claims by the Estate of Rahssan Smith, which was assigned Claim No. 128866. Summary judgment on the issue of liability pursuant to Labor Law § 240(1) was granted to Claimant in that action by this Court (Smith v State of New York, UID No. 2018-040-096 [Ct Cl, McCarthy, J., Oct. 22, 2018], affd 180 AD3d 1270 [3d Dept 2020]) (id., ¶ 4). Claimant asserts that the facts and circumstances of his accident are identical to Mr. Smith's and that Defendant is estopped from arguing against liability (id., ¶¶ 5, 37-43).
On March 5, 2018, Claimant was deposed. He testified that he was a bridge painter and was employed by Bruckel to perform work on the Bridge (Ex. 3, pp. 10, 16, 21, 24-25, 28 attached to Motion). Claimant testified that, on the day of the accident, he began working on the upper portion of the Bridge until he was ordered by his supervisor to assist in the deck removal activities that were taking place under the Bridge (id., pp. 53-56; Weir Affirmation, ¶ 7). As the Court noted in its Smith decision (supra), the deck had been erected so that workers could perform work on the underside of the Bridge (Weir Affirmation, ¶ 8; see Ex. 2 attached to Motion). The deck or platform consisted of overlapping corrugated metal sheets which were placed on top of cables, and then secured, with screws and straps. The sheets were about four feet by eight feet in size and each weighed about 90 pounds (id.).
The corrugated deck was approximately 40 feet wide by 40 yards long (Ex. 3, pp. 44-45 attached to Motion; Weir Affirmation, ¶ 8). On both sides of the platform there was a perimeter cable system that was approximately four feet high and ran the span of the bridge. There were no interior safety cables to tie onto (Ex. 3, pp. 42, 144; Weir Affirmation, ¶ 9). Claimant testified that anyone working on the edge of the platform was required to tie off to the exterior cable system (Ex. 3, p. 44; Weir Affirmation, ¶ 10). Prior to the accident, Claimant had never used a yoyo or a beam clamp to secure his lanyard to the bridge structure when he was working on the metal decking because he had never been provided with the devices (Ex. 3, p. 46; Weir Affirmation, ¶ 11).
Claimant stated that there were no retractable yoyos or beam clamps on the bridge decking for him to use on the day of the accident. The only cables that he could attach his four-foot lanyard to were the exterior cables located on the perimeter of the 40-foot wide deck. Thus, it was impossible to tie off to the exterior cable and move towards the interior of the deck beyond four feet (Ex. 3, pp. 47-49 attached to Motion; Weir Affirmation, ¶ 12). Claimant testified that the only safety instruction he was given regarding the deconstruction of the deck was that he must tie off when working on the perimeter of the decking (Ex. 3, p. 49; Weir Affirmation, ¶ 13).
When Claimant came down to the lower corrugated deck to assist in its dismantling, he witnessed his co-workers using a grinder to cut the shackles that were securing the deck to the underlying cable system. While Claimant had dismantled other decking systems in the past, he had never seen a grinder used to cut the supporting shackles (Ex. 3, p. 56 attached to Motion; Weir Affirmation, ¶ 14). Claimant was directed by his supervisor, Mr. Haddad, to work alongside Mr. Smith using a screw gun to unsecure the decking sheets for removal (Ex. 3, pp. 57-58, 65; Weir Affirmation, ¶ 15). Claimant testified that, all of a sudden, he heard the distinct "pinging" of the screws that hold the deck sheets together starting to fail, and the sheets collapsed, causing him to fall in the water along with Mr. Smith (Ex. 3, pp. 65-68, 90; Weir Affirmation, ¶ 16). Claimant stated that, prior to the accident, both he and Mr. Smith were on the deck approximately 25 feet from the farther of the two perimeter cables, 15 feet from the closer cable (Ex. 3, pp. 59, 83; Weir Affirmation, ¶ 17). Claimant admits that, at the time the platform collapsed, he was wearing his harness and lanyard, however, he was not tied off (Weir Affirmation, ¶ 18; see Ex. 3, pp. 44, 52-53).
Claimant asserts that the collapse of the platform upon which he and his coworkers were working, in and of itself, establishes that the platform was not sufficient to afford the workers proper protection pursuant to Labor Law § 240(1) (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Stewart v Ferguson, 164 NY 553 [1900]; see Weir Affirmation, ¶¶ 49-54).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
Section 240(1) of the Labor Law imposes a duty upon all contractors and property owners and their agents:
[I]n the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] 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.
"Labor Law § 240(1) requires that contractors and owners provide adequate safety devices to protect workers against elevation-related safety risks" (Davis v Wyeth Pharms., Inc., 86 AD3d 907, 908 [3d Dept 2011]). It covers only those special risks, however, that are "associated with elevation-related hazards" and not "any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [emphasis in original]; see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The "single decisive question" in analyzing Labor Law § 240(1) claims 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]).
It is settled that Labor Law § 240(1) must be construed liberally, the duty is non-delegable, and absolute liability is imposed for its breach, regardless of any negligence on the part of the injured worker (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 500; Rocovich v Consolidated Edison Co., supra at 513). At the same time, a defendant upon whom that duty is imposed is not thereby rendered an insurer (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 286). Thus, "[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1)" (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 288, quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Defendant will not be liable if there is no evidence of a statutory violation and Claimant's own negligence is the sole factor in the events that resulted in his injury (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290).
"A prima facie case for summary judgment of Labor Law § 240(1) liability is established when a claimant produces evidence that 'the statute was violated and that the violation proximately caused his [or her] injury' " (Portes v New York State Thruway Auth., 112 AD3d 1049, 1050 [3d Dept 2013], lv denied 22 NY3d 1167 [2017], quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; see Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 287). "A violation occurs where a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device, and it is the only safety device supplied or any additional safety device is also inadequate" (Cody v State of New York, 52 AD3d 930, 931 [3d Dept 2008]; see Meyers v State of New York, 30 AD3d 927, 928 [3d Dept 2006], lv denied 7 NY3d 864 [2006]; Kyle v City of New York, 268 AD2d 192, 197-198 [1st Dept 2000], lv denied 97 NY2d 608 [2002]). "In addition, where a violation of Labor Law § 240(1) serves as a proximate cause of the injury, then the worker's own conduct, even if negligent, cannot be deemed solely to blame for it" (Cody v State of New York, supra; see Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290; Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004], lv denied 36 NY2d 642 [1975]).
Here, it is not disputed that Claimant was working on the platform at the time it collapsed and that the platform was acting as a scaffold within the meaning of Labor Law § 240. As stated by the Appellate Division, Third Department in Rocha v State of New York (45 AD2d 633, 635 [3d Dept 1974]):
A scaffold has been defined in the Industrial Code as "a temporary elevated working platform and its supporting structure including all components". (12 NYCRR 23-1.4 [b], [45].) The courts have described a platform as a temporary structure of material, timber or board, designed for various purposes, mainly for supporting a [worker] in his [or her] work and the materials used by him [or her] (Caddy v Interborough R.T. Co., 195 NY 415 [1909].)
As in the Smith Claim, it is clear to the Court that the platform in this case was an elevated temporary structure and that Claimant and others were directed to perform work on it. Thus, the Court concludes it was the functional equivalent of a scaffold (see Beard v State of New York, 25 AD3d 989, 991 [3d Dept 2006]; Craft v Clark Trading Corp., 257 AD2d 886, 888 [3d Dept 1999]). Moreover, "Labor Law § 240(1) applies even in those situations when the scaffold which is alleged to have failed was in the process of being dismantled or constructed" (Kyle v City of New York, supra at 197; see Cody v State of New York, supra at 931). The Court further finds and concludes that Claimant demonstrated a prima facie showing of entitlement to judgment upon the collapse of the platform and, therefore, the burden shifted to Defendant to raise a question of fact about whether there was a statutory violation and whether Claimant's own acts or omissions were the sole proximate cause of his accident (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290).
Defendant asserts that Claimant's Motion should be denied as several questions of fact exist that must be resolved at trial. Defendant asserts that Mr. Haddad, who was Bruckel's foreman at the time of the incident, testified at his deposition that he was present on the deck when it collapsed (Ex. A [Record on Appeal from Smith v State of New York, supra], pp. 152, 157, attached to the Bernstein Affirmation). Mr. Haddad agreed that four people fell into the water (id., pp. 196-197). He said that Claimant was with Mr. Smith, to Smith's left, "closer to the outside" (id., p. 197). Mr. Haddad then stated that only two people, not four, fell into the water and Claimant was not one of the two who went in the water (id., pp. 197-198). Mr. Haddad said that he jumped in the water in an attempt to save the two people who fell in the water (id., p. 198; see Bernstein Affirmation, ¶ 6).
Defendant also refers to Exhibit C attached to the Bernstein Affirmation, which is a copy of a Voluntary Statement that Claimant gave to the Washington County Sheriff's office on the date of the accident. Claimant stated that the deck "was basically a work platform for us to work on" and was three sheets wide and that, at the time of the accident, he was on the "far left side" and he thought Mr. Smith was on the middle sheet. He said the left sheet that he was on went up and the right side went down. He said that he slid down the decking and fell into the water (see Bernstein Affirmation, ¶ 18).
Defendant further asserts that Claimant was a recalcitrant worker, in that, while he was wearing a safety harness and lanyard at the time the deck collapsed, he was not "tied-off" as required. To establish the recalcitrant worker defense, Defendant "must demonstrate that a worker deliberately refused to employ safety devices available, visible and in place" at the work site (Kouros v State of New York, 288 AD2d 566, 567 [3d Dept 2001]; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993]; Powers v Del Zotto & Son Bldrs., 266 AD2d 668, 669 [3d Dept 1999]).
Defendant asserts that, based upon the above, there are three questions of fact: (1) whether Claimant actually fell off the deck and into the water; (2) whether Claimant was on the middle of the deck near Mr. Smith, or on the edge of the deck where he was required to tie off, at the time the deck collapsed; and (3) whether Claimant was a recalcitrant worker and the sole proximate cause of the accident.
First, the Court will address the question of whether Claimant fell off the deck and into the water. Claimant testified at his deposition that he fell in the water (Ex. 3, pp. 66-68, 71-72, 88 attached to Motion). He also said, in the statement he gave to the Washington County Sheriff's office on the date of the accident, that he "slid down the decking and fell to the water below" (Exhibit C attached to the Bernstein Affirmation). Eric Herchenroder, a co-worker of Claimant's, testified at his deposition that he threw a floating ring to Claimant, who was in the water, pulled Claimant to shore, and got him out of the water (Ex. 4, pp. 11, 16, 39-40, 59 attached to Claimant's Reply [Herchenroder deposition transcript]). In addition, Department of Transportation Assistant Engineer Mark Schellkopf, who was the engineer-in-charge of the Bridge project, stated that four Bruckel employees fell into the canal water, three of whom were transported to area hospitals by local emergency services, and Claimant was listed as an injured worker (Ex. 4 , pp. 6-7 attached to Claimant's Motion [Schellkopf deposition transcript]; Ex. 5 attached to Claimant's Reply [Schellkopf DOT Initial Data Accident Report]). Mr. Herchenroder also testified that Claimant was in the water to the right of the decking, while Mr. LaFontaine was in the water to the left (Ex. 4 , pp. 39-40 attached to Claimant's Reply [Herchenroder deposition transcript]).
Mr. Haddad testified at his deposition that he, along with Claimant, Mr. Smith, and Mr. LaFontaine, were "in the middle of the bridge" before the deck collapsed and that Claimant and Mr. Smith "were working next to each other" (Ex. A, p. 159, attached to Bernstein Affirmation). Mr. Haddad said that, when the deck collapsed, Claimant still was with Mr. Smith, Claimant did not fall into the water, but that Mr. Smith and Mr. LaFontaine did fall into the water about 10 feet apart from one another, in the middle of the canal (Ex. A, pp. 197-198, attached to Bernstein Affirmation). Mr. Haddad stated that he watched Mr. Smith and Mr. LaFontaine fall into the water (id., pp. 160-162, 166). Mr. Haddad testified that he watched Mr. LaFontaine swim toward a cable in the water, and that he reached it and held onto it. He saw that Mr. Smith was struggling, however, so Mr. Haddad jumped into the water, trying to help Mr. Smith, but Mr. Smith kept going under the water, sometimes taking Mr. Haddad with him (id., pp. 161-163). Mr. Haddad was trying to hold Mr. Smith up until a boat came or a lifeline was thrown. However, Mr. Haddad had to let Mr. Smith go because he was too heavy and the water was too cold (id., p. 163). Mr. Smith then went under the water and drowned (id., pp. 167-170).
As stated above, the Court finds that Claimant demonstrated his entitlement to summary judgment, thus shifting the burden to Defendant to prove, by admissible evidence, the existence of a triable issue of fact. As the Appellate Division, Third Department, stated in Rifenburgh v Wilczek (294 AD2d 653, 654-655 [3d Dept 2002]):
In analyzing that proffer, our obligation is to construe the facts in a light most favorable to defendant (see, Silvestro v Wartella, 224 AD2d 799, 799 [3d Dept 1996]) and "not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441[1968]; see, Colonial Indem. Ins. Co. v NYNEX, 260 AD2d 833, 835 [3d Dept 1999]).
If "there is in truth nothing to be tried," then summary judgment may be awarded (Curry v Mackenzie, 239 NY 267, 270 [1925]; see Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
Considering that Mr. Haddad was focused on Mr. LaFontaine and Mr. Smith when they fell in the water, then jumped into the water in a valiant, yet vain, attempt to rescue Mr. Smith, it is likely that he did not witness Claimant fall into the water, as he was otherwise engaged. Moreover, DOT's Mr. Schellkopf said that Claimant was in the water on the other side of the decking from where Mr. LaFontaine was, and Mr. Haddad said Mr. LaFontaine was about 10 feet away from Mr. Smith in the water. Thus, Mr. Haddad's attention was focused on the other side of the decking from where Claimant was in the water. In addition, at one point in his testimony, Mr. Haddad said that four people fell in the water but then changed his answer and said only two did. The record contains a number of reports of several workers having been in the water. In addition, Claimant and at least one other witness (Mr. Herchenroder) stated that Claimant did fall in the water. Finally, Claimant is listed among the injured workers and was taken to the hospital for treatment (see Ex. 10 attached to Claimant's Reply). Therefore, the Court concludes that no triable issue of fact was sufficiently set forth to establish that Claimant did not fall into the water (Rifenburgh v Wilczek, supra).
Assuming, arguendo, that there was a triable issue of fact as to whether or not Claimant fell into the water, the Court further concludes that Defendant, nevertheless, did not meet its burden of raising a question of fact to refute Claimant's prima facie showing of entitlement to summary judgment because it failed to show that Claimant was not injured when the deck collapsed. There is no question that Claimant was on the deck just before the accident, with Mr Haddad saying that he was there with Claimant, Mr. Smith, and Mr. Lafontaine. The Bruckel Accident/Incident Investigation Form states that the deck dropped about six feet (Ex. 8 attached to Claimant's Reply). Mr. Herchenroder reckoned it at four or five feet (Ex. 4, p. 11 attached to Claimant's Reply [Herchenroder deposition transcript]). Mr. Haddad said that the deck dropped when the first cable snapped and then, after the second cable snapped, the deck "pitched," and "caved in" (Ex. A , pp. 159, 164 attached to Bernstein Affirmation [Haddad deposition transcript]). In fact, Mr. Haddad said that, if he was not hanging onto a beam, he "probably would have slid into the water just like everybody else" (id., pp. 160-161). Likewise, there is no question that Claimant was among the injured workers taken to the hospital after the accident, for treatment.
Labor Law Section 240 (1) applies because Claimant was injured while working at a height when the deck or scaffold failed, even though he did not fall to the ground (Adams v North-Star Constr. Co., 249 AD2d 1001, 1002 [4th Dept 1998]; see Dos Santos v State of New York, 169 AD3d 1328, 1329 [3d Dept 2019]; Franklin v Dormitory Auth. of State of N.Y., 291 AD2d 854, 854 [4th Dept 2002]; Kyle v City of New York, supra at198). That Claimant "did not actually fall from the [deck] is irrelevant so long as the 'harm directly flow[ed] from the application of the force of gravity to an object or person' "(Lacey v Turner Constr. Co., 275 AD2d 734, 735 [2d Dept 2000], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Here, the Court agrees with Claimant that it is entirely irrelevant whether or not he fell to the water below the bridge, or if he fell on the deck itself. In either case, Claimant's injuries directly flowed from the application of the force of gravity when the deck dropped, pitched, and caved in, while he was standing on it.
The Court will next address the alleged factual issue of whether Claimant was on the middle of the deck near Smith or whether he was on the edge of the deck where he was required to tie off at the time the deck collapsed. The deposition testimony of all the witnesses was consistent, that Claimant was working in the middle portion of the deck and was to the left of Mr. Smith. Claimant stated he was working on the left sheet of the deck in the middle (Ex. 3, pp. 44-45, 59-60, attached to Motion). The fact that Claimant, in his statement to the Washington County Sheriff, said that, at the time of the accident, he was on the "far left side" does not mean that he was on the edge of the deck and needed to tie off. The Court finds that Defendant failed to raise a triable issue of fact regarding where Claimant was working at the time of the accident.
The Court will now address the alleged factual issue that Claimant was a recalcitrant worker because, Defendant asserts that, while Claimant was wearing a safety harness and lanyard at the time the Bridge collapsed, he was not "tied-off" as required. To establish the recalcitrant worker defense, Defendant "must demonstrate that a worker deliberately refused to employ safety devices available, visible and in place" at the work site (Kouros v State of New York, 288 AD2d 566, 567 [3d Dept 2001]; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993]; Powers v Del Zotto & Son Bldrs., 266 AD2d 668, 669 [3d Dept 1999]).
Liability pursuant to Labor Law § 240(1) does not attach when safety devices are readily available at the work site and a claimant knows that he or she is expected to use them but, for no good reason, chooses not to, and such omission is the sole proximate cause of the accident (Gallagher v New York Post, supra; Fabiano v State of New York, 123 AD3d 1262, 1263 [3d Dept 2014], lv dismissed 25 NY3d 957 [2015]; Portes v New York State Thruway Auth., supra; Silvia v Bow Tie Partners, LLC, 77 AD3d 1143, 1144 [3d Dept 2010]). "However, where a device intended to support a worker at an elevated height fails and that failure is a proximate cause of the accident, it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant's] injury) to occupy the same ground as a [claimant's] sole proximate cause for the injury" (Fabiano v State of New York, supra; Portes v New York State Thruway Auth., supra at 1051, quoting Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290; see Smith v State of New York, 180 AD3d 1270, 1271 [3d Dept 2020]).
As in the Smith Claim, Claimant was standing on the platform or deck, which itself was a safety device erected for the work. The platform collapsed, causing Claimant to fall. Defendant submitted proof that Claimant, while wearing a safety harness and lanyard, was not tied-off to another safety device, when another safety device, i.e., the platform or deck, collapsed (see Kouros v State, supra). "Claimant, as a matter of law, cannot be deemed to be a recalcitrant worker solely because he was not attached when the other safety device, i.e., the scaffold, collapsed" (id.). While the action of Claimant in failing to tie-off could be considered comparative or contributory negligence, such a defense is not available to a Labor Law § 240(1) cause of action (Smith v State of New York [3d Dept], supra; Fabiano v State of New York, supra; Portes v New York State Thruway Auth., supra; Kouros v State of New York, supra).
The Court concludes that Defendant's submission fails to demonstrate that Claimant's conduct was the sole proximate cause of the accident or that any material questions of fact exist and, thus, is insufficient to overcome Claimant's prima facie showing of entitlement to judgment in his favor regarding his Labor Law § 240(1) cause of action. The deck or platform having collapsed, Claimant cannot be the sole proximate cause of the accident and any failure on his part to tie-off was, at most, evidence of comparative negligence, which defense is not available to Defendant in this instance. Therefore, based upon the foregoing, the Claimant's Motion for summary judgment as to the Labor Law § 240(1) cause of action is granted.
March 10, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion for summary judgment: Papers Numbered Claimant's Notice of Motion, Affirmation in Support and Exhibits Attached 1 Defendant's Affirmation in Opposition and Exhibits Attached 2 Claimant's Reply Affirmation and Exhibits Attached 3 Filed Papers: Claim, Answer