New York State Court of Claims

New York State Court of Claims

FLOYD v. THE STATE OF NEW YORK, #2000-017-608, Claim No. 102147, Motion Nos. M-62203, CM-62302


Claimant's late filing motion granted in part, based upon Labor Law section 240(1).

Case Information

JIMMY FLOYD The court has deleted the improper and superfluous reference to the "Department of Corrections" from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has deleted the improper and superfluous reference to the "Department of Corrections" from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Finkelstein, Levine, Gittelsohn & Partnersby: James Shuttleworth III, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: J. Gardner Ryan, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 12, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order granting permission to file an amended claim, or in the alternative for permission to file a late claim pursuant to Court of Claims Act § 10(6). Defendant cross-moves for an order dismissing the claim. Claimant alleges that he was injured on July 20, 1999, at Fishkill Correctional Facility, when, while "working on an inside section of a concrete block wall *** some 12 to 14 feet high," he "suddenly and without warning fell to the ground due to the absence of safety devices and a proper scaffold" (Floyd affidavit sworn to July 28, 2000, ¶2). The instant claim, filed on March 20, 2000, had two problems: (1) claimant failed to pay the filing fee required by Court of Claims Act § 11-a(1); and (2) the claim states that the underlying incident occurred at Downstate Correctional Facility, rather than Fishkill Correctional Facility.

Claimant now moves for permission to amend his claim to correctly set forth the place where it accrued, or in the alternative for permission to file a late claim, and defendant cross-moves for an order of dismissal based on the claim's non-compliance with Court of Claims Act § 11(b) ("the claim shall state the time when and place where such claim arose ***"). Were the court required to reach the latter issue, the outcome would be straightforward. The mis-identification of the place of accrual directly implicates the principle that the State's waiver of immunity is conditioned on compliance with the terms of the Court of Claims Act, and claimant's mistake in this regard deprives the court of jurisdiction over the claim, a defect that may not be cured by claimant's proposed "Amended Claim." Nevertheless, claimant's non-compliance with § 11(a)(1) of the act renders the issue moot.

Subsequent to the filing of the claim without the required filing fee, an order was entered by Presiding Judge Susan Phillips Read, on April 5, 2000, directing claimant to pay the fee within 120 days and providing that, if such were not done, the clerk of the court was directed to close the file without further judicial action. The deadline passed, no filing fee was received, and the file was closed on September 1, 2000. This series of events was fatal to Claim No. 102147, regardless of its other deficiency, and the sole issue left for the court to determine on this motion is whether claimant's application for permission to file a late claim should be granted.

In considering an application for permission to file a late claim, the court is required to consider the six factors specifically set forth in Court of Claims Act § 10(6) as well as any other relevant factor (see, e.g., Matter of Carvalho v State of New York, 176 AD2d 317). Claimant's failure to present a reasonable excuse for failing to timely serve a claim or notice of intention that correctly set forth the place where the incident occurred is not fatal to his application (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

As claimant notes, a demonstration that the proposed claim appears to be meritorious is crucial in persuading the court that granting a late filing application would be a provident exercise of its discretion (Savino v State of New York, 199 AD2d 254; Ouziel v State of New York, 174 Misc 2d 900). Here, although claimant has not submitted a discrete "proposed claim" as required by the statute, his obvious intent is that the document that he has denominated an "Amended Claim" (based on his application, herein denied, to amend Claim No. 102147) also serve that purpose, and the court will refer to that document (Exhibit "H" to the notice of motion) as the "proposed claim." Therein, claimant asserts causes of action based upon three sections of the Labor Law: §§200, 240(1) and 241(6).

Although §200 is invoked in the proposed claim, it is not mentioned in the affidavits (claimant's and counsel's) submitted in support of the motion. Undoubtedly, that is because the liability claimant seeks to impose on the State of New York as owner of the premises arises from an "alleged defect or dangerous condition [that] arises from the contractor's methods," not from any defect in the premises, and, under such circumstances, where "the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law §200" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Claimant does not even attempt to argue that the defendant had any notice of the alleged defect in the scaffold or the failure to provide him with required safety equipment, notwithstanding his general allegation that State inspectors were present at the work site (cf., Cruz v Toscano, 269 AD2d 122). Therefore, the court cannot find that there is any appearance of merit to a cause of action based upon Labor Law §200.

Liability pursuant to Labor Law §241(6) requires proof that an owner or contractor breached a specific provision of the Industrial Code. While proof of actual supervision and control of the worksite is not required, it is necessary that a claimant identify "provisions of the Industrial Code mandating compliance with concrete specifications" (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 495) and submit proof that such a provision or provisions were violated. Here, although the proposed claim does cite, by number only, six sections and one subpart of the Code, the motion papers are essentially silent as to this aspect of claimant's application. Claimant, in his affidavit, states that his attorney has told him that he has a "Labor Law Section 240" case, with no mention of any of the provisions of the Industrial Code referred to in the proposed claim and no discussion of any facts that might lead one to include that any of those sections were implicated in claimant's injury. His counsel's affirmation merely states: "Claimant also has a cause of action under Labor Law Section 241(6) which provides that 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 safety to all persons employed therein. Claimant has obviously made out a prima facie case in this regard." (Par. 15). In actuality, the only thing that is obvious is that the failure to set forth (1) what is required by each of the provisions that claimant alleges was violated and (2) in what manner each of those provisions were violated, precludes the court from concluding that there is any apparent merit to a cause of action based upon §241(6).

Nevertheless, claimant and his counsel are correct in asserting that claimant's allegations, taken to be true for the purpose of this motion, do indicate the likelihood of success of his §240(1) cause of action (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, supra.; Stouraitis v Long Island Railroad, 269 AD2d 589). Accordingly, the court finds that there is apparent merit to the proposed claim to the extent that it is based upon §240(1) and no apparent merit to the proposed claim otherwise.

On the related issues of timely notice, opportunity to investigate, and lack of prejudice to the defendant should the motion be granted, it appears that an accident report detailing the circumstances of claimant's accident was on file at the Fishkill Correctional Facility shortly after the accident. The report plainly indicates that it involved a fall from a scaffold, which, in view of Labor Law §240(1) and the consistent judicial interpretation of that section over the years, provided not only the opportunity but sufficient motivation to conduct whatever investigation defendant wished to conduct, notwithstanding the subsequent service of a notice of intention and a claim that referred to an alleged incident at a different correctional facility.

Defendant's claim of prejudice centers around the disclaimer of liability on the part of the insurance carrier that issued the policy to the general contractor, with the State of New York named as additional insured. This disclaimer was based upon the State's alleged failure to provide timely notice of the occurrence to the carrier. Claimant maintains, somewhat cogently, that it was the obligation of the policyholder, the general contractor, to provide notice to its insurer, not the obligation of the additional insured party, and also that it was the State's actual knowledge of the incident, demonstrated by its possession of the accident report, that should have triggered any obligation to notify the carrier, not the receipt of a claim or notice of intention. In any event, the issue of insurance is irrelevant to the question of prejudice raised by the instant motion. The State's liability, if any, herein will be purely vicarious, based on the operation of Labor Law §240(1). Under these circumstances, the State would be entitled to "full common-law indemnification" from the party who was actually negligent (i.e., the contractor or subcontractor responsible for the defective scaffold and the failure to provide safety equipment) as long as the State did not direct, control or supervise the work (Morin v Hamlet Golf Development Corp., 270 AD2d 321; Dawson v Pavarini Construction Co., 228 AD2d 466). Since there is no allegation or indication of any State control or supervision (and if there were any semblance of such an argument to be made, the court can only presume that claimant would not have abandoned his §200 cause of action), the question of insurance is of interest only between the contractor and the carrier. Defendant may determine the validity of the disclaimer by bringing a third-party claim against the carrier pursuant to Court of Claims Act §9(9-a). Either claimant's arguments as to the invalidity of the disclaimer will be sustained, or, at worst, defendant will be relegated to seeking indemnification directly from the contractor. Any prejudice resulting from the latter scenario seems minimal.

For the sake of completeness, the court notes that neither party discussed the existence of an alternate remedy. It appears that the only such remedy would be a workers' compensation claim, a partial and inadequate remedy at best.

On balance, the court concludes that, for the reasons stated, claimant's application for permission to file a late claim should be granted to the extent that the proposed claim is based upon a violation of Labor Law §240(1) and should be otherwise denied.

To summarize, the motion for leave to interpose an Amended Claim is denied, the motion for permission to file a late claim is granted to the extent that claimant may serve (by a method authorized by the Court of Claims Act) and file his claim, based only on the alleged violation of Labor Law §240(1), accompanied by the required filing fee, within 30 days after the file-stamped date of this order. The cross motion to dismiss Claim No. 102147 is denied as moot since that claim has already been dismissed.

December 12, 2000
White Plains, New York

Judge of the Court of Claims

In connection with this motion the court considered the following papers:

1. Notice of Motion, Affirmation, Affidavit and Exhibits

2. Notice of Cross-Motion, Affirmation and Exhibits

3. Affirmation in Opposition