New York State Court of Claims

New York State Court of Claims

ABRUZZESE v. THE STATE OF NEW YORK, #2000-005-516, Claim No. NONE, Motion No. M-59455


Synopsis


Motion for permission to file a late claim granted. Ladder on which inmate is standing slips and he is injured. Claim permitted, inter alia, on question of whether State provided a reasonably safe place to work.

Case Information

UID:
2000-005-516
Claimant(s):
BRUCE ABRUZZESE
Claimant short name:
ABRUZZESE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-59455
Cross-motion number(s):

Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
Dominic Pellegrino, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 13, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim: (1, 2, 3) Notice of Motion, Affidavits and Exhibits Annexed, and (4) Affirmation in Opposition and Exhibits Annexed. Upon the foregoing papers, and after hearing Dominic Pellegrino, Esq. on Claimant's behalf, and Thomas G. Ramsay, Esq. on Defendant's behalf, the motion is granted. This is an application for permission to file a late claim pursuant to Court of Claims Act §10(6). The motion was filed on April 19, 1999, relating to an incident which occurred on September 4, 1998. Thus the motion, which alleges causes of action sounding in violations of the labor law and negligence, has been timely made within the parameters of CPLR article 2. Claimant properly attached a proposed claim.

Accordingly I will now consider the six statutory factors of §10(6). The underlying incident occurred on September 4, 1998, while Claimant was an inmate at the Groveland Correctional Facility. He alleges that on the day in question, as part of his work assignment, he was directed by a correction officer to paint the walls of a stairway at a particular building at Groveland and was provided with a 15 - foot extension ladder for such purpose.

While Claimant was standing on said ladder, several feet above the ground, performing his painting assignment, the ladder allegedly slipped, Claimant lost his balance and fell backward, whereupon his feet became wedged between the rungs of the ladder and the wall. He dangled there for several minutes, allegedly sustaining injuries to his left hip, leg, ankle, foot, abdomen and head.

A Notice of Intention to file a Claim was mailed to the Clerk of the Court of Claims and to the Attorney General in November 1998. However, as acknowledged by Claimant, service thereof upon the Defendant was not accomplished by the statutorily required certified mail return receipt requested (Court of Claims Act §11). Nonetheless, this provided the Defendant with timely notice of the essential facts underlying the claim, less than 90 days from its accrual and gave the Defendant a timely opportunity to investigate. Similarly Claimant asserts that a correction officer and medical personnel at the facility were given notice of the incident on the day of its occurrence.

Claimant's excuse for the failure to have timely (and properly) filed and served his claim sounds in ignorance of the law, and as such is not acceptable. Nonetheless, the failure to satisfy all six statutory criteria of §10(6), is not required
(Bay Terrace Coop. Section IV v New York State Employee's Retirement Sys., 55 NY2d 979)
. It would appear that Claimant has no viable alternative remedy, particularly as no structural defect in the ladder appears presumable and certainly is not alleged. Claimant further asserts, without refutation, that the stairway where he was working at the time of his accident has not been altered, and given the timely notifications of the correction officer and medical personnel, and the timely, albeit improperly served, Notice of Intention, prejudice would not enure to the Defendant were I to grant this application.

Thus, the determination of this motion, as it should be, revolves upon the appearance of meritoriousness of the proposed claim, as it would be an exercise in futility to permit late filing if a potentially viable claim is not presented(see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). In articulating merit Claimant alleges causes of action pursuant to Labor Law §240 relating to a gravity-related injury; Labor Law §241(6), specifically asserting a violation of 2 NYCRR 23.-1.21, as well as negligence, and a claim under Labor Law §200 in the failure to provide a safe place to work.

Irrespective of whether individual causes of action are available under the aforementioned provisions of the Labor Law, specifically §§ 240(1), 241(6) ,and 200, Claimant contends that they do set the standard and duties of the State, including the duty to provide a reasonably safe place to work (see, e.g., Palmisano v State of New York, 47 AD2d 692; Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665), and that for the purposes of this application, it is only necessary for him to show that the proposed claim has the appearance of merit (Matter of Santana, supra). While inmates who have been injured while working in correctional facilities are not entitled to the full range of protections afforded by the Labor Law, at a minimum, they are nevertheless entitled to a work place that is reasonably safe under the prevailing circumstances (Kandrach v State of New York, 188 AD2d 910, 913). The allegations here are sufficient to demonstrate the appearance of merit.

Accordingly, after balancing the statutory factors, and upon review of the papers before me, including the proposed claim, I deem it a provident exercise of my discretion to permit the proposed late claim herein to be filed, amended to be consistent herewith. Claimant may serve and file his claim within 45 days of service of a file-stamped copy of this order.

June 13, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims