State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 519921 

________________________________

BARBARA CRISTINA SCRIBNER,

Individually and as

Administrator of the Estate

of CHADWICK SCRIBNER,

Deceased, MEMORANDUM AND ORDER

Respondent,

v

STATE OF NEW YORK,

Appellant.

________________________________

Calendar Date: May 27, 2015

Before: Peters, P.J., Lahtinen, Garry and Devine, JJ.

__________

Goldberg Segalla, LLP, Albany (Matthew S. Lerner of

counsel), for appellant.

Powers & Santola, LLP, Albany (Michael J. Hutter of

counsel), for respondent.

__________

Peters, P.J.

Appeal from an order of the Court of Claims (Milano, J.),

entered July 9, 2014, which, among other things, partially

granted claimant's cross motion for partial summary judgment.

Chadwick Scribner was employed as a journeyman by a roofing

company that had been retained to replace the roof on the State

Capitol Building in the City of Albany. On July 1, 2011, he was

responsible for collecting pieces of roof tile removed by his

coworkers further up on the roof. Larger tile pieces were handed

down to Scribner, while smaller pieces would slide down the roof
-2- 519921 

and accumulate on a flat stone ledge where he was standing. 

Depending upon their size, Scribner either stacked the pieces or

put them in a bucket to be placed on scaffolding below the ledge. 

While collecting the tile pieces, Scribner became "tangled up in

them" and fell onto the scaffolding, sustaining injuries. 

Scribner and claimant, his spouse,1 derivatively, commenced

this action against defendant alleging, as relevant here,

violations of Labor Law §§ 240 (1) and 241 (6). Following

joinder of issue and discovery, defendant moved for summary

judgment dismissing the claim, and Scribner and claimant crossmoved for summary judgment on the issue of liability. The Court

of Claims partially granted defendant's motion by dismissing

certain portions of the Labor Law § 241 (6) claim,2 granted

claimant's cross motion for summary judgment only on the issue of

defendant's liability as to the Labor Law § 240 (1) claim and

otherwise denied the motions. Defendant appeals. 

Liability under Labor Law § 240 (1) arises when a worker's

injuries are "'the direct consequence of a failure to provide

adequate protection against a risk arising from a physically

significant elevation differential'" (Wilinski v 334 E. 92nd

Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011], quoting Runner v New

York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Nalepa v

South Hill Bus. Campus, LLC, 123 AD3d 1190, 1191 [2014], lv

denied 25 NY3d 909 [2015]). Ordinarily, the adequacy of a safety

device is a question of fact, unless the device "'collapses,

slips or otherwise fails to perform its function of supporting

the worker'" (Dalaba v City of Schenectady, 61 AD3d 1151, 1152

1 Scribner died during the pendency of this action. While

the cause of his death is not revealed in the record, the parties

do not assert that his death was caused by, or otherwise related

to, the injuries underlying the instant claims. Claimant was

appointed as the administrator of Scribner's estate and the

caption was amended accordingly. 

2 In particular, the Court of Claims dismissed that portion

of the Labor Law § 241 (6) claim alleging violations of 12 NYCRR

23-1.24 (b) and 12 NYCRR 23-5.3 (f).
-3- 519921 

[2009], quoting Nephew v Barcomb, 260 AD2d 821, 823 [1999]; see

Dowling v McCloskey Community Servs. Corp., 45 AD3d 1232, 1233

[2007]).

The distance that Scribner fell from the roof ledge to the

scaffolding is disputed. Claimant alleged, in the bill of

particulars, that the scaffolding was two feet below the ledge,

while Scribner and the project supervisor asserted in their

deposition testimony that the scaffolding was four to five feet

below the ledge. Regardless of whether the height differential

was two, four or five feet, Scribner's fall is the type of

elevation-related risk to which Labor Law § 240 (1) applies (see

Gatto v Clifton Park Senior Living, LLC, 90 AD3d 1387, 1387

[2011]; Amo v Little Rapids Corp., 301 AD2d 698, 701 [2003],

appeal dismissed, lv denied 100 NY2d 531 [2003]).

The parties' submissions also raise a question of fact as

to whether the scaffolding afforded Scribner adequate protection

and, if not, whether the absence of an appropriate safety device

was the proximate cause of his injuries (see Beardslee v Cornell

Univ., 72 AD3d 1371, 1372 [2010]; Soltes v Brentwood Union Free

School Dist., 47 AD3d 804, 805 [2008]; Canino v Electronic Tech.

Co., 28 AD3d 932, 933 [2006]). Defendant's expert opined that,

because of the relatively short height differential, scaffolding

was the only available safety device and that it functioned

properly by preventing Scribner from falling over a hundred feet

to the ground. In contrast, claimant's expert asserted that the

scaffolding, as erected, was inadequate, and that Scribner's

injuries could have been prevented if the scaffolding had been

raised,3 a temporary railing had been added along the ledge or a

temporary vertical barrier had been installed to prevent smaller

tile pieces from accumulating in his walkway. In response,

defendant's expert maintained that the scaffolding was sufficient

and specifically rejected each of the proposed alternatives,

stating that a railing was unnecessary because the ledge and

3 Claimant's expert acknowledged, however, that "[d]ue to

the configuration of the building parapet and facade

ornamentation at the base of the . . . roof," the scaffolding

could not have been raised to be flush with the edge of the roof.
-4- 519921 

certain pillars served as such and that, among other things, a

barrier was not necessarily safer because it would have reduced

Scribner's workspace. Inasmuch as these conflicting expert

opinions and the uncertainty surrounding the height differential

between the roof and the scaffolding create questions of fact,

claimant's cross motion on the issue of defendant's liability

under Labor Law § 240 (1) should have been denied (see Ball v

Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [2007];

Musselman v Gaetano Constr. Corp., 277 AD2d 691, 692 [2000]).

Claimant's Labor Law § 241 (6) claim should have been

dismissed in its entirety. To prevail under this statute, a

claimant must demonstrate the existence of an injury sustained in

an area where "construction, excavation or demolition work is

being performed" (Labor Law § 241 [6]; see Rizzuto v L.A. Wenger

Contr. Co., 91 NY2d 343, 348 [1998]), "the violation of a

regulation setting forth a specific standard of conduct

applicable to the working conditions which existed at the time of

the injury" (Lawyer v Hoffman, 275 AD2d 541, 542 [2000]; see St.

Louis v Town of N. Elba, 70 AD3d 1250, 1250 [2010], affd 16 NY3d

411 [2011]) and that the violation was the proximate cause of the

injury (see Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1293

[2008]; Shields v General Elec. Co., 3 AD3d 715, 718 [2004]). 

As relevant here, claimant's Labor Law § 241 (6) cause of

action is predicated on purported violations of three

regulations: 12 NYCRR 23-1.7 (b) (1), which regulates the safety

precautions that must be taken to avoid injuries resulting from

hazardous openings; 12 NYCRR 23-1.7 (e) (2), which requires that

work areas be kept free of debris, scattered tools and materials

"insofar as may be consistent with the work being performed"; and

12 NYCRR 23-1.15, which sets forth the safety railing

specifications required to protect against hazardous openings.

These regulations, however, are inapplicable as a matter of law,

as the drop from the roof ledge where Scribner was working to the

scaffolding on which he fell does not qualify as a "hazardous

opening" (see Francescon v Gucci Am., Inc., 105 AD3d 503, 504

[2013]; Landon v Austin, 88 AD3d 1127, 1129 [2011]; Pope v Safety

& Quality Plus, Inc., 74 AD3d 1040, 1041 [2010], lv dismissed 15

NY3d 862 [2010]; Rookwood v Hyde Park Owners Corp., 48 AD3d 779,

781 [2008]), and the tile pieces over which Scribner tripped were
-5- 519921 

materials involved "in the actual task he was performing" (Alvia

v Teman Elec. Contr., 287 AD2d 421, 423 [2001], lv dismissed 97

NY2d 749 [2002]; see Lech v Castle Vil. Owners Corp., 79 AD3d

819, 820-821 [2010]; Solis v 32 Sixth Ave. Co. LLC, 38 AD3d 389,

390 [2007]; Castillo v Starrett City, 4 AD3d 320, 322 [2004]). 

Accordingly, defendant was entitled to summary judgment

dismissing the Labor Law § 241 (6) claim in its entirety.

Lahtinen, Garry and Devine, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as (1) partially denied

defendant's motion for summary judgment dismissing the Labor Law

§ 241 (6) cause of action and (2) granted claimant's cross motion

for summary judgment on the issue of liability with respect to

the Labor Law § 240 (1) cause of action; defendant's motion

granted and claimant's cross motion denied to that extent; and,

as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court