# 2014-041-036 Claim No. 120372 Motion No. M-83156 Cross-Motion No. CM-83273
POWERS & SANTOLA, LLP By: Daniel R. Santola, Esq. GOLDBERG SEGALLA, LLP By: Jonathan M. Bernstein, Esq.
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BARBARA CRISTINA SCRIBNER, Individually, and as Administratrix of the Estate of CHADWICK SCRIBNER
Claimant short name:
Footnote (claimant name) :
THE STATE OF NEW YORK
Footnote (defendant name) :
|Claim number(s):|| |
FRANK P. MILANO
POWERS & SANTOLA, LLP By: Daniel R. Santola, Esq.
GOLDBERG SEGALLA, LLP By: Jonathan M. Bernstein, Esq.
Third-party defendant's attorney:
|Signature date:|| |
June 16, 2014
|See also (multicaptioned case)|
Defendant moves pursuant to CPLR § 3212 for summary judgment dismissing the claim in this action which alleges that Labor Law violations and common law negligence by defendant caused injury and damages to Chadwick Scribner (Scribner) and to claimant. Claimant opposes defendant's motion and cross-moves for summary judgment on her Labor Law §§ 240 (1) and 241 (6) causes of action.
Claimant, in her papers opposing defendant's motion for summary judgment, withdrew her Labor Law § 200 and common law negligence causes of action and those causes of action are dismissed.
After submission of the motion and cross-motion, claimant Chadwick Scribner died on July 4, 2013, and the Albany County Surrogate's Court thereafter appointed claimant Administratrix of the Estate of Chadwick Scribner. On January 15, 2014, Barbara Cristina Scribner, individually and as Administratrix of the Estate of Chadwick Scribner, was substituted as claimant in the Court of Claims and the caption was amended accordingly, pursuant to a stipulation and order filed on that date.
The claim alleges that on July 1, 2011, Scribner was employed by Titan Roofing, Inc. (Titan) to perform roofing work on the roof of the New York State Capitol Building, Albany, New York. The claim further alleges that the defendant, as "the owner of the premises," had "engaged" Titan to "perform roofing work on the Capitol Building."
According to the claim, the defendant, as "the owner of the premises" had "the authority and/or right to control all activities, including the work to be performed and who was to perform the work." Defendant allegedly had the "right to control safety practices on the work site" and the "authority to stop the work."
The claim further alleges that at approximately 1:00 p.m. on July 1, 2011 Scribner "fell from the roof of the Capital [sic] building onto a scaffolding platform which was located at a lower level than from where he fell."
In particular, the claim asserts that Scribner's work at the time of his fall involved picking up broken pieces of clay tiles which had been removed from the Capitol roof by co-workers and which had been slid down the roof by the co-workers to the roof's edge:
"Claimant was directed to pick up the pieces of tile as they slid down the roof, walk them a few feet along a flat perimeter, and dispose of them by throwing the pieces into a bin located on a scaffolding platform several feet below the edge of the roof where [Scribner] was working."
The claim states that:
"[W]hile doing this work, [Scribner] was caused to slip and/or trip, losing his balance and falling off the edge of the roof landing onto the lower level scaffolding platform below."
Finally, the claim alleges that Scribner "was not provided with adequate safety devices to prevent his fall off the roof of the Capitol Building."
As a result of his fall, Scribner allegedly suffered severe and permanent injuries and damages and his wife, claimant Barbara Cristina Scribner, was allegedly deprived of his services, society and companionship.
The claim states that defendant is responsible for claimant's injuries and damages as a result of the negligence of the officers, agents and/or employees of the State of New York, and by virtue of statutory responsibility on the part of the State of New York pursuant to New York Labor Law §§ 200, 240 (1) and 241 (6).
As set forth above, the claimant's causes of action sounding in common law negligence and violation of Labor Law § 200 have been withdrawn and are dismissed.
The standard for review of these motions 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 Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
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."
The Court of Appeals explained, in Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 ), that "[t]he 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 & 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."
Despite the formidable protections offered workers by Labor Law § 240 (1), "a defendant may establish its entitlement to summary judgment by showing that no statutory violation has occurred and that the sole proximate cause of an accident was the plaintiff's own actions" (Deshields v Carey, 69 AD3d 1191, 1192 [3d Dept 2010]).
The parties agree on most of the pertinent facts. There is no dispute that defendant is an owner subject to the requirements of the Labor Law and that Scribner was, at the time he was injured, a person employed in a covered construction activity and entitled to the protection from elevation-related injury required by Labor Law § 240 (1). There is also no dispute that at the time Scribner fell from the roof edge to the scaffolding platform, he was working "hundreds of feet" above the ground below.
The only meaningful factual dispute with respect to claimant's Labor Law § 240 (1) cause of action is whether Scribner's fall from the roof edge to the scaffolding platform was from an elevation of approximately two (2) feet, as set forth in claimant's three (3) bills of particulars, or from an elevation of 4-5 feet, as testified to in pre-trial examinations by Scribner and Scribner's supervisor, Titan foreman Shawn Bisner (Bisner), who witnessed Scribner's fall.
The Court finds that defendant has met its initial burden and made a prima facie showing of entitlement to judgment dismissing claimant's Labor Law §§ 240 (1) and 241 (6) causes of action as a matter of law by offering proof through the deposition testimony of Scribner and Bisner, in addition to the affidavit of its occupational safety expert, John Tomich, that an appropriate safety device, the scaffolding platform, was provided to Scribner and functioned as intended by preventing Scribner from falling hundreds of feet from the Capitol roof to the ground below.
In opposition to defendant's motion, claimant has offered the deposition transcripts of Scribner and Bisner, in addition to the affidavit of its expert civil/structural engineer, Richard R. Pikul, P.E. The Court finds that these submissions raise factual issues, including, but not limited to, the issue of whether Scribner was exposed to a risk of falling from the roof edge to the scaffolding platform and whether he was provided safety device(s) "so constructed, placed and operated as to give [him] proper protection" (Labor Law § 240 ).
Defendant's motion for summary judgment dismissing claimant's Labor Law § 240 (1) cause of action is therefore denied. Claimant has produced evidentiary proof in admissible form sufficient to raise material issues of fact as to defendant's potential liability under Labor Law § 240 (1).
Claimant cross-moves for summary judgment as to her Labor Law § 240 (1) cause of action.
Claimant asserts that Scribner was exposed to two separate and distinct falling hazards: "1) [T]he hazard of falling off the scaffold decking to the ground below; and 2) the hazard of falling off the roof ledge onto the scaffold decking 4 to 5 feet below the level of the [roof] ledge."
The Court agrees. The hazard of falling from the roof edge to the scaffolding platform which provided Scribner access to the roof was a separate foreseeable elevation-related construction risk against which the safety devices set forth in Labor Law § 240 (1) are intended to protect. This is illustrated by the holding in McGill v Qudsi (91 AD3d 1241 [3d Dept 2012], lv dismissed 19 NY3d 1013 ). The McGill court explains (91 AD3d at 1242) that the plaintiff was tasked with replacing a window on the second floor of a building:
"[P]laintiff secured and ascended the ladder he had brought with him to the job and, while his son was inside the apartment removing the interior molding, began to remove the siding, molding and other material from around the exterior of the window frame. Once loosened, the window was guided into plaintiff's hands and rested against the ladder. Plaintiff then began to descend the ladder while sliding the window along it. When he was approximately 8 to 10 feet from the ground, he fell from the ladder and landed on his back, with the window landing on top of him."
The lower court in McGill denied defendant's cross-motion for summary judgment dismissing the complaint based upon the defendant's contention that "there was no statutory violation because plaintiff was provided with an adequate safety device - the ladder - and there is no evidence that the ladder itself was defective, that it slipped, tipped, was placed improperly or otherwise failed to support plaintiff" (McGill, 91 AD3d at 1242-1243).
Instead, the McGill lower court granted plaintiff's motion for partial summary judgment as to defendant's liability under Labor Law § 240 (1). The McGill court affirmed the lower court, holding (McGill, 91 AD3d at 1243) that:
"[T]here were two distinct elevated risks associated with the window removal that plaintiff was hired to perform. The first risk was created by the need for plaintiff to elevate himself to the second story of the apartment building to access the window he needed to remove, and there are no allegations concerning the adequacy of this particular ladder as a device to safely elevate plaintiff. The second risk was created by the task of removing and lowering the four foot by five foot, 40- to 50-pound window down the ladder. It is defendant's complete failure to provide any safety device to protect plaintiff from this separate elevation-related hazard that gives rise to liability under Labor Law § 240 (1) as a matter of law . . . . Despite defendant's assertions to the contrary, plaintiffs were not required to prove what particular safety devices would have prevented the accident."
In opposition to claimant's cross-motion for summary judgment, defendant argues that: There was no violation of Occupational Safety and Health Standards (OSHA) in connection with Scribner's fall; Scribner fell from only 2 feet above the scaffolding platform rather than from 4 to 5 feet above the scaffolding platform; a proper safety device, the scaffolding platform, was provided to Scribner; claimant has not identified any particular safety device which was absent or inadequate; and Scribner himself was the sole proximate cause of his injuries.
Defendant's argument that its compliance with OSHA standards either supports dismissal of the cause of action or raises a question of fact is unpersuasive because "mere compliance with OSHA regulations does not defeat a prima facie showing of Labor Law § 240 (1) liability" (Murray v Arts Ctr. & Theater of Schenectady, Inc. 77 AD3d 1155, 1157 [3d Dept 2010]).
In Dalaba v City of Schenectady (61 AD3d 1151, 1153 [3d Dept 2009]), the court rejected a similar contention:
"Also unavailing is Edison's effort to rely on its alleged compliance with Occupational Safety and Health Act (hereinafter OSHA) regulations to create a question of fact as to whether its failure to provide protective devices violated Labor Law § 240 (1). The cited OSHA provision applies to employers, not owners such as Edison (see 29 CFR 1926.501 [a] ; Millard v City of Ogdensburg, 274 AD2d 953, 954 ; see also Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 694-695 ). Also, Labor Law § 240 (1) 'contain[s] its own specific safety measures' (Long v Forest-Fehlhaber, 55 NY2d 154, 160 ) and, thus, an owner's asserted compliance with OSHA regulations does not defeat plaintiff's prima facie showing."
Defendant's claim that Scribner fell only two (2) feet, as described in claimant's bills of particulars, rather than 4-5 feet, as set forth in Scribner's deposition testimony, is insufficient to defeat claimant's cross-motion. In Amo v Little Rapids Corp. (301 AD2d 698, 701-702 [3d Dept 2003], appeals dismissed and lv dismissed and denied 100 NY2d 531 , appeals dismissed and lv dismissed 1 NY3d 556 , appeal dismissed and lv dismissed 1 NY3d 557 , appeal dismissed 1 NY3d 558 ), the court considered whether there is a "qualifying elevation differential" in Labor Law § 240 (1) cases:
"Defendants' and MRL's central contention on this appeal after the second trial is that the jury's factual determination that plaintiff fell 15 to 16 inches renders Labor Law § 240 (1) inapplicable, as a matter of law. We cannot agree.
The sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240 (1) liability cannot, unfortunately, be reduced to a numerical bright-line test or automatic minimum/maximum quantification and, indeed, as we recognized in Amo I (268 AD2d 712, 717, supra), the extent of the elevation differential may not, by itself, necessarily determine whether section 240 (1) applies . . . On one side of the spectrum, de minimis elevations involving falls at or very near ground level are insufficient . . . On the other end of the spectrum, otherwise qualifying falls of several feet have been determined to be sufficiently elevated so as to fit within the intended protective scope of Labor Law § 240 (1) . . .
This case, involving an otherwise qualifying elevation differential of 15 to 16 inches, represents a middle ground, of sorts, in reported Labor Law § 240 (1) jurisprudence and we find support for Supreme Court's conclusion that, considering all of the circumstances of this accident, this height was sufficient to present the type of elevation-related hazard protected by this statute."
Further, in Gatto v Clifton Park Senior Living, LLC (90 AD3d 1387 [3d Dept 2011]), the court affirmed a lower court order granting plaintiff partial summary judgment on his Labor Law § 240 (1) cause of action where:
"Plaintiff was performing construction work on a nine-foot ceiling, which necessarily required him to raise himself up to reach that height. Although the stilts only raised him about 1 ½ feet off the floor, this height differential created an elevation-related hazard within the purview of Labor Law § 240 (1)."
The Court finds as a matter of law, under the totality of the circumstances presented, that the hazard of falling from the roof edge to the scaffolding platform (located "hundreds of feet" above the ground), whether from 2 feet above the scaffolding platform or from 4-5 feet above the scaffolding platform, was itself an elevation-related risk within the purview of Labor Law § 240 (1).
While defendant is correct that the safety device provided to prevent Scribner from falling to the ground "hundreds of feet" below worked as intended, there is no dispute that Scribner was not provided any safety device intended to prevent him from falling from the roof edge to the scaffolding platform.
Next, as claimant correctly points out, she is not "required to prove what additional safety devices would have prevented [Scribner's] injury" as a prerequisite to recovery under Labor Law § 240 (1) (Cody v State of New York, 52 AD3d 930, 931 [3d Dept 2008]; see Miranda v Norstar Bldg. Corp., 79 AD3d 42, 48 [3d Dept 2010]).
Finally, defendant points to Scribner as the sole proximate cause of his injuries, however:
"[D]efendant has offered no evidence to show that [Scribner] had been given and was told to use any safety harness or other safety device in connection with his work that would have protected him from the elevation-related hazard" created by his work on the roof edge (McDonald v UICC Holding, LLC, 79 AD3d 1220, 1221 [3d Dept 2010], lv denied 17 NY3d 769 ).
Defendant's various contentions regarding Scribner's conduct amount, at most, to comparative negligence, which is insufficient to avoid Labor Law § 240 (1) liability (see Williams v Town of Pittstown, 100 AD3d 1250 [3d Dept 2012]; Pearl v Sam Greco Constr., Inc., 31 AD3d 996, 997 [3d Dept 2006], lv denied 11 NY3d 710 ; Gilbert v Albany Med. Ctr. (9 AD3d 643, 644-645 [3d Dept 2004]).
There is no evidence that Scribner either chose the manner in which he performed his assigned work or that he refused to use an available safety device. The Court finds as a matter of law that defendant's failure to provide Scribner a safety device "so constructed, placed and operated as to give proper protection" (Labor Law § 240 ) to him from the elevation-related risk of falling from the roof edge to the scaffolding platform was a proximate cause of his injuries (Johnson v Small Mall, LLC, 79 AD3d 1240, 1242 [3d Dept 2010).
Consequently, "[a]s this statutory violation [Labor Law § 240 (1)] was a proximate cause of [Scribner's] fall, [Scribner's] own actions cannot be the sole proximate cause of his fall" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004]).
Three undisputed facts mandate that the Court deny defendant's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action and grant summary judgment in favor of claimant pursuant to Labor Law § 240 (1):
1. Scribner, at the time of his accident, was required to perform his work on the Capitol roof rather than on the scaffolding platform, which provided Scribner access to the roof;
2. Scribner was working at an elevation of between two (2) and five (5) feet above the scaffolding platform; and,
3. Scribner was not provided any safety device intended to prevent him from falling from the roof edge to the scaffolding platform.
Defendant's Labor Law 240 (1) liability is established.
Defendant also moves to dismiss claimant's cause of action based upon Labor Law § 241 (6) because claimant cannot show a specific violation of an administrative regulation of the New York State Industrial Code, as required for liability under the statute, which provides as follows:
§ 241. Construction, excavation and demolition work
"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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law 241 (6) imposes a nondelegable duty on owners and contractors to "provide reasonable and adequate protection and safety" for covered workers (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 ; Lynch v 99 Washington, LLC, 80 AD3d 977, 978 [3d Dept 2011]).
"In order to state a claim under section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 ; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 ; Ares v State of New York, 80 NY2d 959, 960 ).
Rizzuto v L.A. Wenger Contr. Co. (91 NY2d 343, 350 ), explains that:
"[O]nce it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault . . .
An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241 (6), including contributory and comparative negligence."
Claimant's Labor Law 241 (6) cause of action alleges that defendant violated 12 NYCRR 23-1.7 (b) (1) (i); 12 NYCRR 23-1.7 (b) (1) (ii); 12 NYCRR 23-1.7 (e) (2); 12 NYCRR 23-1.15 (a); 12 NYCRR 23-1.15 (b); 12 NYCRR 23-1.24 (b) and 12 NYCRR 23-5.3 (f), respectively, and that such violations proximately caused Scribner's accident.
12 NYCRR 23-1.7 (b) (1) provides as follows:
(b) Falling hazards.
(1) Hazardous openings.
(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).
(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.
In support of her 23-1.7 (b) (1) allegation, claimant offers the testimony of Scribner and Bisner, in addition to the affidavit of her expert civil/structural engineer, Richard R. Pikul, P.E. (Pikul) and photographic exhibits B and C which show an opening created between pillars on the roof edge. The opening apparently served to allow workers access to move up and down from the roof edge to the scaffolding platform.
Claimant argues that a "safety railing with a gate should have been constructed and installed along the face of the pillars to prevent [Scribner] from falling when he tripped gathering the tile and debris to be carried to the scaffold."
Claimant further argues that the scaffolding platform was 4 to 5 feet below the roof edge and lacked a railing or gate protecting against a fall. Claimant's expert Pikul opines, "with a reasonable degree of engineering certainty, that the work area had unprotected openings that could result in the subject accident if a worker stepped into the steeply sloping slot between pillars or stepped off the top of the pillar bases."
In Wells v British Am. Dev. Corp. (2 AD3d 1141, 1142 [3d Dept 2003]), the plaintiff construction worker:
"[W]as standing on the ground at the bottom of the excavated hole on a 4 to 6-inch wide dirt ledge between a concrete footing and an adjacent elevator pit, which was 5 to 6 feet deep. Plaintiff was taking measurements when he felt the ground go out beneath him causing him to fall into the pit"
The Wells court considered, among other things, whether the lower court had properly granted defendant summary judgment dismissing plaintiff's 241 (6) cause of action premised in part upon an alleged violation of 12 NYCRR 23-1.7 (b) (1). The Wells court held that:
"According to plaintiff's evidence, the elevator pit opening was large enough for a person to fall through to a lower area. The evidence was, therefore, sufficient to allege a violation of 12 NYCRR 23-1.7 (b) (1) . . . Since plaintiff's offer of proof established a prima facie case under Labor Law § 241 (6), his cause of action as to this claimed violation should not have been dismissed."
Likewise, claimant has offered proof that the accident site contained an opening into which a person could step or fall which was not guarded by a substantial cover fastened in place, by a safety railing or by a substantial gate, as directed in 12 NYCRR 23-1.7 (b) (1).
The Court finds that issues of fact exist as to whether defendant violated 12 NYCRR 23-1.7 (b) (1) (i) and (ii) and, if so, whether such violation was a proximate cause of Scribner's fall (see Milanese v Kellerman, 41 AD3d 1058 [3d Dept 2007]; Coleman v Crumb Rubber Mfrs., 92 AD3d 1128 [3d Dept 2012).
Claimant further asserts that defendant violated 12 NYCRR 23-1.7 (e) (2) which requires "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
Defendant argues that these provisions are inapplicable because the debris Scribner was assigned to clean up and which he tripped over was an inherent part of the work being performed (see O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805, 806 ).
Claimant counters, through Pikul, that the accumulation of the broken pieces of clay tiles which had been removed from the Capitol roof by co-workers and which had been slid down the roof by the co-workers to the roof's edge could have been prevented "by erecting a temporary vertical barrier along the bottom of the steeply sloping roof to collect debris and prevent the debris from collecting on the flat ledge/gutter where Scribner needed to stand."
The Court finds that a factual issue exists as to whether the debris over which Scribner tripped, broken pieces of clay tiles which had been removed from the Capitol roof by co-workers and which had been slid down the roof by the co-workers to the roof's edge, was an integral or inherent part of the work being performed. Accordingly, defendant's motion for summary judgment dismissing claimant's cause of action under Labor Law 241 (6), founded upon 12 NYCRR 23-1.7 (e)  and , is denied.
Claimant also alleges that defendant violated 12 NYCRR 23-1.15 (a) and (b) which provide that:
"Whenever required by this Part (rule), a safety railing shall consist as a minimum of an assembly constructed as follows:
(a) A two inch by four inch horizontal wooden hand rail, not less than 36 inches nor more than 42 inches above the walking level, securely supported by two inch by four inch vertical posts at intervals of not more than eight feet.
(b) A one inch by four inch horizontal midrail."
Defendant insists that 12 NYCRR 23-1.15 (a) and (b) cannot support claimant's Labor Law § 241 (6) cause of action because the regulation is only "to be considered in conjunction with section 23-1.7 (b) (1) when a safety railing is required" (Wells, 2 AD3d at 1144) and, in this case, "the scaffold had railings that worked fine considering claimant did not fall to the ground 'hundreds' of feet below."
The Court has already found that an issue of fact exists as to whether a safety railing or gate to protect workers from a falling hazard from an unprotected opening on the roof edge, as defined in section 23-1.7 (b) (1), was required at the work site and, if so, whether the lack of a safety railing or gate was a proximate cause of Scribner's fall. Defendant's motion for summary judgment dismissing claimant's cause of action under Labor Law § 241 (6), founded upon 12 NYCRR 23-1.15 (a), is therefore denied.
To the extent claimant relies upon 12 NYCRR 23-1.24 (b) ["high and steep roofs"] and 12 NYCRR 23-5.3 (f) [access to metal scaffolds] to support her Labor Law § 241 (6) cause of action, the defendant's dismissal motion is granted. Claimant has failed to raise an issue that any alleged violation of the cited provisions proximately caused Scribner to fall from the roof edge after tripping over the clay tile debris.
Claimant's cross-motion for summary judgment on her Labor Law § 241 (6) cause of action is denied based upon the issues of fact set forth above, including whether the portion of the unprotected roof edge from which Scribner fell was an unguarded hazardous opening requiring a safety railing or gate and, if so, whether the asserted violation was a proximate cause of Scribner's fall. Scribner's comparative fault, if any, must also be considered by the fact-finder with respect to defendant's potential liability pursuant to Labor Law § 241 (6).
To summarize, defendant's motion for summary judgment dismissing the claim is denied, except as to claimant's Labor Law § 241 (6) cause of action to the extent it rests upon alleged violations of 12 NYCRR 23-1.24 (b) and 12 NYCRR 23-5.3 (f). Claimant's Labor Law § 200 and common law negligence causes of action are dismissed.
Claimant's cross-motion for summary judgment is granted as to her Labor Law § 240 (1) cause of action and is denied as to her Labor Law § 241 (6) cause of action.
June 16, 2014
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed March 19, 2013;
2. Affirmation of Jonathan M. Bernstein, dated March 18, 2013, and annexed exhibits;
3. Affidavit of Jonathan M. Bernstein, sworn to March 22, 2013, and annexed exhibits;
4. Affidavit of John Tomich (Exhibit N), sworn to March 15, 2013, and annexed exhibit;
5. Affidavit of Marc Prendergast (Exhibit P), sworn to March 15, 2013, and annexed exhibit;
6. Notice of Cross-Motion, filed April 12, 2013;
7. Affidavit of Daniel R. Santola, sworn to April 12, 2013, and annexed exhibits;
8. Affidavit of Richard R. Pikul, sworn to April 10, 2013, and annexed exhibits;
9. Reply Affidavit of Jonathan M. Bernstein, sworn to May 8, 2013;
10. Reply Affidavit of John Tomich, sworn to May 6, 2013;
11. Affidavit of Daniel R. Santola, sworn to May 21, 2013;
12. Letter of Jonathan M. Bernstein, dated May 21, 2013;
13. Letter of Jonathan M. Bernstein, dated May 30, 2013.