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
, 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.