MUCO v. STATE (2021)

The instant claim was filed on October 25, 2019 seeking damages for injuries allegedly sustained when claimant fell from a ladder while working on the roof of the New York State Office Building located at 250 Veterans Memorial Highway in Hauppauge, New York on December 12, 2018. A notice of intention to file a claim (NI) was served upon the Office of the Attorney General on February 12, 2019. The claim asserts violations of Labor Law §§ 240, 241 (6) and 200. Claimant now moves for summary judgment on the claims asserting violations of Labor Law §§ 240 (1) and 241 (6). Defendant moves to dismiss the claim for lack of subject matter jurisdiction under Court of Claims Act § 11 (b) and, in the alternative, for summary judgment on all claims.

MOTION TO DISMISS

The Court will first address defendant's motion to dismiss the claim. Defendant argues that the NI failed to specify the precise location of claimant's accident in contravention of Court of Claims Act § 11 (b).

“The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature” (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, “[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act § 11 (b) “places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” (Lepkowski v State of New York, 1 NY3d at 207 [internal quotation marks omitted]). “Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept 2008]). “The statement[s] must be specific enough so as not to mislead, deceive or prejudice the rights of the State” (Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept 2004]).

The NI states that “[t]he claim arose ․ on the roof of the New York State Office Building, located at 250 Veterans Memorial Highway, Hauppauge, NY” (Affirmation in Support of Motion, Exhibit 1). Defendant contends that the location specified in the NI consists of a “multi-level, multi-roof buildings(s)” and attaches a Google Maps image of the building (Affirmation in Support of Motion, ¶ 47).

Contrary to defendant's contention, the Court finds that the description contained in the NI was sufficient to enable the State to promptly investigate the claim and ascertain its liability (see Davila, 140 AD3d at 1416). Unlike the description of the accident location contained in the pleadings in Fritz Scott v State of New York (Claim No. 126935; Motion No. M-87729 [Ct Cl, Lynch, J., Feb. 18, 2016]), which was relied on by the State in support of its dismissal motion, claimant's description directs the State to construction work occurring on the roof of the building located at 250 Veterans Memorial Highway in Hauppauge, New York. The description of the accident location in Fritz Scott consisted of only the street address of a 250,000 square foot building and did not mention where at that address the accident was alleged to have occurred. Moreover, the claim in Fritz Scott lacked the date or time of when the accident occurred, which are also required by Court of Claims Act § 11 (b). Here, the NI provides the State with the date and time of the accident, along with the specific location of the accident. Specifically, claimant's NI apprised the State that claimant was injured on December 12, 2018 at approximately 1:00 p.m. on the roof of the New York State Office building located at 250 Veterans Memorial Highway in Hauppauge, New York. This description is far more informative than the description contained in Fritz Scott and contained sufficient information to allow the State to investigate its potential liability. Accordingly, the Court finds that the NI satisfied Court of Claims Act § 11 (b).

MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

In support of his motion for summary judgment, claimant, Dhimiter Muco, submits his deposition testimony (Affirmation in Support of Motion, Exhibits 6 and 7).

Claimant testified that, on December 12, 2018, he was employed by Marfi Construction Company (Marfi) full-time as a roofer. On that date, he was working on the roof of the building located at 250 Veterans Memorial Highway in Hauppauge, New York to remove the old roof and install a new roof, which included the main roof and two bulkheads. The bulkheads were approximately 11 to 12 feet tall. He had been working at the site to install the new roof since October 2018.

Claimant's work installing the new roof involved applying a white rubber on top of sheetrock. The white rubber was called an EPDM membrane. The process involved placing glue on the sheetrock and then placing the rubber EPDM membrane on top of the glue. The EPDM membrane came in large sheets and had 4-inch self-adhesive, peel-and-stick backings on the ends of the sheets that were used to connect the separate sheets.

Claimant stated that he did not receive any orientation or safety training from Marfi regarding the roof replacement project, but his supervisor, Dimitri, would hold a meeting with the workers each morning to assign tasks. As to equipment, claimant testified that Marfi provided only one ladder for the roof installation project—the eight-foot A-frame ladder from which claimant fell. He testified that he had never used this type of ladder on prior roofing jobs and that he would usually use taller extension ladders, but there were no extension ladders available at this job site. He had asked his supervisor, Dimitri, for an extension ladder, but Dimitri told him that they only had the eight-foot A-frame ladder available for accessing the top of the bulkhead. He had also complained to Nick, the project foreman, regarding the lack of an appropriate ladder. On the date of claimant's fall, he used the eight-foot A-frame ladder to successfully access the top of the bulkhead. When he attempted to descend the ladder after performing work on the top of the bulkhead, he put his right foot on the top rung of the ladder and the ladder started moving. He then went to put his left foot on the top rung. Both his left foot and the top rung of the ladder had sand on them and he slipped and fell off the ladder. He stated that there was a three-foot gap between the top of the ladder and the top of the bulkhead, such that he could not see where he was placing his foot.

In support of its motion for summary judgment, defendant submits several affidavits, including the affidavits of Dimitrios Stavrakakis, Marfi's supervisor for the roof replacement project; Nikos “Nick” Apostolopoulos, Marfi's foreman for the roof replacement project; and Andrea Kollcinaku and Ioannis Kolosakas, Marfi roofers who worked on the roof replacement project.

Stavrakakis avers that he provided specific instructions to Marfi employees regarding the means and methods of the work to be performed in the form of weekly “toolbox talks” (Stavrakakis Aff. ¶ 3). The proper use of ladders was discussed during the toolbox talks (id.). When Marfi first started work on the roof replacement project, Stavrakakis noticed that the State of New York Office of General Services (OGS) kept an eight-foot A-frame ladder at the job site on the roof (id., ¶ 4). Marfi was not given permission to use this ladder, and Stavrakakis stated that Marfi provided its own tools and equipment at the job site, including an 18-foot extension ladder (id., ¶ 5). Stavrakakis avers that he explicitly instructed all Marfi employees to never use the eight-foot A-frame ladder to access the bulkheads because it was not tall enough, and to instead use Marfi's 18-foot extension ladder to access the bulkheads (id., ¶¶ 6-7). He also instructed employees to pick up all debris to prevent tripping or slipping hazards (id., ¶ 8).

He held a toolbox talk at approximately 7:00 a.m. on the morning of claimant's accident and advised both claimant and another employee, Jorgo Elezi, to used the 18-foot extension ladder, not the eight-foot A-frame ladder and to clean up any debris created by their work (Stavrakakis Aff. ¶ 11). On the date of the accident, claimant was finishing the detail work on the bulkhead from which he fell, which involved installing EPDM membranes that had a peel-and-stick backing. That morning, Stavrakakis specifically instructed claimant to immediately dispose of the EPDM film wrappers in a garbage bag on the bulkhead roof (id., ¶ 12).

At approximately 1:45 p.m., Elezi called to Stavrakakis after claimant fell (Stavrakakis Aff. ¶ 13). When he responded to where claimant fell, he observed the eight-foot A-frame ladder leaning against the bulkhead in the closed position (id., ¶ 14). Claimant told him that he slipped and fell off the ladder because he had a piece of EPDM film stuck to the bottom of his boot (id., ¶ 15). Stavrakakis avers that the 18-foot extension ladder “was readily available and on the main roof” at the time of the accident (id., ¶ 16).

Apostolopoulos was not present at the job site on the date of claimant's accident, but avers that the 18-foot extension ladder was readily available on the roof when he left the job site on December 11, 2018 and when he returned on December 13, 2018 (Apostolopoulos Aff. ¶ 6). He further avers that Stavrakakis held weekly toolbox talks where he instructed Marfi employees to not used the 8-foot A-frame ladder and to instead use the 18-foot extension ladder provided by Marfi.

Kollcinaku and Kolosakas were both employed as Marfi roofers on the date of claimant's accident, although they were not present at the job site on that day. They both averred that on all of the dates they were present at the job site, both before and after claimant's fall, there was an 18-foot extension ladder available on the roof to be used to access the bulkheads (Kollcinaku Aff. ¶ 3; Kolosakas Aff. ¶ 4). Kolosakas further averred that all Marfi roofers present at the job site each day were told to use the 18-foot extension ladder to get onto and off of the bulkheads (Kolosakas Aff. ¶ 5). He also averred that the 18-foot extension ladder was readily available on the roof when he left the job site on December 11, 2018 and when he returned on December 13, 2018 (id., ¶ 6).

Labor Law § 240 (1)

Labor Law § 240 (1) states:

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.

The purpose of Labor Law § 240 (1) is to protect workers and to impose the responsibility of safety practices on those best situated to bear that responsibility (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). The duty imposed therein is nondelegable, and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (id.). To successfully assert a cause of action under Labor Law § 240 (1), claimant must establish that he was injured during “the erection, demolition, repairing, altering or painting of a building or structure” (Enos v Werlatone, Inc., 68 AD3d 713, 714 [2d Dept 2009]). Liability may be imposed under this statute “only where 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’ ” (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Notably, Labor Law § 240 (1) does not impose liability for all perils “connected in some tangential way with the effects of gravity” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). “Rather, liability is contingent upon the existence of a hazard contemplated in [Labor Law] section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). However, where the claimant's actions are the sole proximate cause of his injuries, no liability attaches under Labor Law § 240 (1) (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).

Here, claimant argues that he is entitled to summary judgment because the evidence establishes that defendant failed to provide the necessary safety devices to claimant, as the eight-foot A-frame ladder was an inadequate safety device. Additionally, claimant argues that he was not provided with fall protection, such as a hoist, harness, or safety net. Defendant argues that it is entitled to summary judgment because claimant was the sole proximate cause of his accident because (1) he slipped off of the ladder due to debris on the bottom of his boot and (2) he made the unilateral decision to use the eight-foot A-frame ladder that he was specifically told not to use, despite the availability of an 18-foot extension ladder.

In order for claimant to establish entitlement to summary judgment, claimant must establish that defendant violated Labor Law § 240 (1) by failing to provide him with an adequate safety device, and that such failure was the proximate cause of his injuries. “However, if adequate safety devices are provided and the worker either chooses not to use them or misuses them, then liability under section 240 (1) does not attach” (Cherry v Time Warner, Inc., 66 AD3d 233, 236 [1st Dept 2009], citing Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]).

Here, both claimant and defendant have presented conflicting evidence as to whether an 18-foot extension ladder was available for claimant's use on the job site on the date of his accident. Claimant testified that the eight-foot A-frame ladder was the only ladder available to him on the date of the accident and that no extension ladders were provided despite his complaints to both his supervisor, Stavrakakis, and the foreman, Apostolopoulos. Conversely, the affidavit of Stavrakakis submitted by defendant states that Stavrakakis explicitly told claimant not to use the eight-foot A-frame ladder and to instead use the 18-foot extension ladder provided by Marfi. Apostolopoulos, Kollcinaku and Kolosakas also averred that Stavrakakis informed workers not to use the eight-foot ladder and to use the 18-foot extension ladder instead. The conflicting evidence raises a question of fact and precludes summary judgment (Cherry v Time Warner, Inc., 66 AD3d at 238).

Defendant also argues that claimant is the sole proximate cause of his accident because he slipped due to debris on the bottom of his foot. Defendant has not established its entitlement to summary judgment on this ground because, as explained in the preceding paragraph, a question of fact exists as to whether defendant violated Labor Law § 240 (1) by failing to provide claimant with an appropriate ladder. As stated by the Court of Appeals in Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 290 [2003], “if a statutory violation is a proximate cause of an injury, the [claimant] cannot be solely to blame for it. Conversely, if the [claimant] is solely to blame for the injury, it necessarily means that there has been no statutory violation.” In other words, if defendant failed to provide claimant with an adequate ladder to access the bulkhead and such failure is the proximate cause of claimant's injuries, then it violated Labor Law § 240 (1) and liability attaches regardless of whether defendant had debris on the bottom of his boot.

Labor Law § 241 (6)

Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors “to provide reasonable and adequate protection and safety” for persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). Thus, a property owner must comply with the provisions of the State Industrial Code, Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York (see Ortega v Puccia, 57 AD3d 54, 60 [2d Dept 2006]). To prove a claim under Labor Law § 241 (6), a claimant must establish that defendant violated a specific rule or regulation and that the claimant's injuries were proximately caused by the violation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 504-505).

Claimant alleges that defendant violated two sections of the Industrial Code. The first alleged violation is section 23-1.7 (f), entitled “Protection From General Hazards” which states that “[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.” The section alleged violation is section 23-1.21 (b) (4), which applies to the installation and use of ladders and ladderways. Industrial Code § 23-1.21 (b) (4) states:

Any portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place. Such a ladder shall extend at least 36 inches above the upper floor, level or landing or handholds shall be provided at such upper levels to afford safe means of access to or egress from the ladder.

Claimant alleges that the aforementioned Industrial Code sections were violated because (1) the ladder was not a safe means to access the bulkhead; (2) the ladder was not nailed or otherwise fastened in place; (3) the ladder did not extend at least 36 inches above the bulkhead; and (4) no handholds were provided on the bulkhead to provide safe means of access to or egress from the ladder.

First, the Court denies defendant's motion for summary judgment on claimant's Labor Law § 241 (6) insofar as it is predicated on a violation of Industrial Code § 23-1.7 (f). Defendant argues that claimant failed to allege a violation of Industrial Code § 23-1.7 (f) in his pleadings. However, a claimant's failure to allege the violation of a specific section of the Industrial Code in either the claim or bill of particulars is not fatal where the belated allegation does not raise new factual allegations, new theories of liability, or otherwise prejudice defendant (Kelleir v Supreme Industrial Park, LLC, 293 AD2d 513, 514 [2d Dept 2002]). Here, defendant was sufficiently apprised that claimant's Labor Law § 241 (6) involved the unsafe and inadequate nature of the ladder utilized by claimant to access the bulkhead.

Defendant also argues that the ladder used by claimant was not a “regular means” of access between two levels of the same building or structure (see Industrial Code § 23-1.21 [b] [4]), and therefore Industrial Code § 23-1.21 (b) (4) cannot form the basis of claimant's Labor Law § 241 (6) claim. While defendant argues that there is no credible evidence that the ladder used by claimant was the regular means of access to the bulkhead, claimant testified that he was told to use the eight-foot A-frame ladder to access the bulkhead. Therefore, defendant has not established its entitlement to summary judgment on this ground.

Claimant does not dispute that the eight-foot A-frame ladder was not the appropriate ladder to be used to access the bulkhead. However, as explained in the preceding section, a question of fact exists as to whether claimant's use of the eight-foot A-frame ladder, despite the alleged availability of an 18-foot extension ladder, was the sole proximate cause of his injuries (see Serrano v Popovic, 91 AD3d 626, 627 [2d Dept 2012]). Therefore, neither party is entitled to summary judgment on claimant's Labor Law § 241 (6) claim predicated on violations of Industrial Code sections 23-1.7 (f) and 23-1.21 (b) (4).

Remaining Claims

Defendant moves for summary judgment dismissing claimant's Labor Law § 241 (6) claims predicated on violations of Industrial Code §§ 23-1.5 (a)-(c); 23-1.7 (b); 23-1.13; 23-1.16; 23-1.17; 23-1.21 (a); 23-1.21 (c)-(f); 23-2.1 (a); 23-5.1; 23-5.3; 23-5.4; and 23-5.5 and Labor Law § 200 claim. Claimant has failed to address defendant's motion for summary judgment on these claims in his opposition papers. As claimant had abandoned these causes of action, summary judgment is granted and the claims are dismissed (see Elam v Ryder Sys., Inc., 176 AD3d 675, 676 [2d Dept 2019] [granting summary judgment on Labor Law claims that were not addressed in the plaintiff's opposition papers]; see also Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 [2d Dept 2016]).

The Court has considered the parties’ remaining contentions and finds them either without merit or unnecessary to this determination.

CONCLUSION

Based upon the foregoing, it is hereby

ORDERED that claimant's motion for summary judgment (M-96462) is DENIED; and it is further

ORDERED that defendant's motion to dismiss the claim and for summary judgment (M-96573) is GRANTED IN PART as to claimant's Labor Law § 241 (6) claims predicated on violations of Industrial Code §§ 23-1.5 (a)-(c); 23-1.7 (b); 23-1.13; 23-1.16; 23-1.17; 23-1.21 (a); 23-1.21 (c)-(f); 23-2.1 (a); 23-5.1; 23-5.3; 23-5.4; and 23-5.5 and Labor Law § 200 claim, and DENIED as to claimant's Labor Law § 240 (1) claim and the Labor Law § 241 (6) claims predicated on violations of Industrial Code §§ 23-1.7 (f) and 23-1.21 (b) (4).

Papers Considered:

1. NYSCEF Document Nos. 3-11; 15-30; 32-46; 57-62; 64-68; 70-71.

Maureen Liccione, J.