Opinion
# 2015-029-038 Claim No. 119968 Motion No. M-86182
06-18-2015
MICHAEL GRAVANIS v. THE STATE OF NEW YORK
STAVROS E. SITINAS, LLC By: Stavros E. Sitinas, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Dian Kerr McCullough, Assistant Attorney General
Synopsis
Claimant, a painter employed by a State contractor for a hospital renovation, alleged that he injured his hand when a ladder he was standing on slipped and fell to the floor. The claim asserted violations of Labor Law §§ 200, 240(1) and 241(6). Claimant moved for summary judgment after disclosure ended, arguing defendant's prima facie liability under Labor Law § 240(1). The court agreed and found that defendant failed to rebut with admissible evidence showing an issue of material fact or calling deposition testimony into doubt. The court dismissed the violations under Labor Law §§ 200 and 241(6) as abandoned and unsupported, and directed entry of interlocutory judgment on liability in favor of claimant.
Case information
| UID: | 2015-029-038 |
| Claimant(s): | MICHAEL GRAVANIS |
| Claimant short name: | GRAVANIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119968 |
| Motion number(s): | M-86182 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | STAVROS E. SITINAS, LLC By: Stavros E. Sitinas, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 18, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a worker alleging he was injured in a fall from a ladder while working for a contractor hired by the State for renovation work at Helen Hayes Hospital, moves for partial summary judgment after the completion of disclosure. Although the claim alleges liability pursuant to sections 200, 240(1) and 241(6) of the Labor Law, the motion addresses only section 240(1). There is no question that the defendant is the owner of the subject premises and its opposition to the motion is centered around its contention that there are two genuine issues of material fact allegedly elicited at the depositions.
Claimant testified that on the date of the incident, March 21, 2011, he was employed as a painter by the State contractor, KMA. He arrived for work at approximately 6:45 a.m. and worked for about two hours, plastering frames around newly installed windows. He testified that while he was standing on the second or third step of the A-frame ladder he had been provided, the ladder slipped and he fell to the floor. Immediately prior, he stated, the ladder was resting on a newly installed floor which claimant testified was covered with material that he believed were spare pieces of flooring material, placed to protect the new floor from getting scratched. None of his co-workers were immediately proximate and claimant's supervisor, Pavlos, had left the area so nobody saw him fall. He testified he reported the accident to a co-worker within five minutes and to Pavlos when he returned to the site an hour later. Pavlos suggested claimant get an X-ray, since they were in a hospital, but facilities were not available and they went to the cafeteria and applied ice. Claimant stated he left work early and attempted to return the next day, but he was unable to work and went to the hospital where he began treatment for the injured hand.
Claimant's position is that the accident occurred because he was not provided with proper protection for his work on the A-frame ladder because the ladder slipped and thus failed to support him as intended. Claimant contends, correctly, that a prima facie violation of section 241(1) is established by proof that a ladder shifted or failed, causing injury to a worker. Claimant's deposition testimony, in the absence of evidence calling that testimony into doubt or indicating the existence of a genuine issue of material fact, is sufficient to establish liability under the statute (Morocho v Plainview-Old Bethpage Cent. Sch. Dist., 116 AD3d 935 [2d Dept 2014]; Lopez-Dones v 601 W. Assoc., LLC, 98 AD3d 476 [2d Dept 2012]; Gonzalez v AMCC Corp., 88 AD3d 945 [2d Dept 2011]).
Defendant contends that the record indicates two such issues. First, defendant alleges that it is unclear what caused claimant's hand injury, citing to testimony from the facilities director at Helen Hayes that Pavlos had told him that claimant had told Pavlos that he had already been injured before coming to work on the day in question and testimony from the contractor's project manager that Pavlos had told her (translating what claimant had said in Greek) that claimant had stated that he had been injured over the weekend and that she concluded that claimant could not have been injured on the job because no work was done on weekends.
However, as claimant notes, the "deposition testimony . . . relied upon by the defendant in opposition to the plaintiff's motion revealed that neither of these two witnesses had personal knowledge of the facts . . . their statements . . . were based on inadmissible hearsay, surmise, and conjecture" (Madalinski v Structure-Tone, Inc., 47 AD3d 687, 688 [2d Dept 2008]), it is not evidence and has no probative value in opposition to the motion. Moreover, the statements even if they were taken into account do not address or rebut claimant's account of the incident - that the ladder slipped and he fell from it, and that an injury to his hand was addressed by his supervisor first looking for X-ray facilities and then obtaining ice to treat the hand. What damages ultimately accrued to claimant's hand as a result will be the subject of a damages trial and defendant will be free to raise the issue of a pre-existing or different injury to the hand, via admissible testimony, and it will be claimant's burden to establish the consequences of the event. For the purpose of this motion, defendant's contention that the two cited instances of deposition testimony weigh against granting summary judgment is unavailing.
The second alleged contested issue of fact arises from defendant's citation of the project manager's testimony that her recollection was that there was nothing on top of the newly laid vinyl floor to protect it while claimant testified that extra pieces of flooring were used for that purpose. What defendant does not cite is any authority indicating that the outcome of this issue would have any legal bearing. Whether or not there was loose flooring involved with the ladder falling, the fact remains that defendant has offered nothing to dispute claimant's contention that he fell from the unsecured ladder when it slipped and that claimant has therefore established his case pursuant to the statute (Casasola v State of New York,129 AD3d 758 [2d Dept 2015]; Gonzalez v AMCC Corp., 88 AD3d 945, supra. In Betancur v Lincoln Ctr. for the Performing Arts, Inc., 101 AD3d 429, 430, the existence of "factual issues [with respect to] whether the temporary flooring contributed to plaintiff's accident" were sufficient to deny summary resolution of indemnification and contribution claims between defendants, but irrelevant to the question of liability pursuant to section 240[1]), as claimant's summary judgment motion was started notwithstanding the unresolved issue.
Although the claim also cites sections 200 and 241(6), claimant does not mention them in his motion papers and there is nothing in the record before the court to indicate potential liability pursuant to those sections. Accordingly, those aspects of the claim are dismissed as abandoned and the motion is granted. The court finds defendant 100% liable pursuant to 240(1). The Clerk of the Court will enter an interlocutory judgment in favor of claimant, after which a damages trial will be scheduled.
June 18, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers Considered:
Notice of Motion, Affirmation and Exhibits
Affirmation in Opposition and Exhibits
Reply Affirmation