6, 7, 8 Post Argument Submissions from Claimant and Defendant
Upon the foregoing papers, and after hearing Michael P. Stacy, Esq., on behalf
of Claimant, and Thomas G. Ramsay, Esq., on behalf of Defendant, the motion is
granted to the extent noted. The proposed claim arises from a June 25, 1998 road
construction site accident on Route 20 in Genesee County. Kevin Jones, a
laborer employed by Keeler Construction Co., allegedly sustained injuries to his
hand, shoulders and knees, as well as psychological injuries, when he fell from
the back of a moving pickup truck. At the time, Keeler Construction was engaged
in a paving project for the New York State Department of Transportation (DOT) on
Route 20. The accident occurred at about 7:15 a.m., and it was unclear from the
papers whether Mr. Jones was in the process of placing or retrieving orange
warning cones or whether he was being transported back to the construction site
headquarters having completed his work for the day. The Workers' Compensation
Form C-2 prepared by Keeler Construction the day after the accident states that
at the time of the injury the employee was "[r]iding in back of pickup truck -
picking up cones and flagmen," and that the accident occurred when "[s]ign blew
in back of truck, Employee moved to secure sign, and fell out of back of truck"
(Exhibit B to the Notice of Motion).
The motion papers indicate that the DOT engineer in charge at the site was
informed of the accident and that it was recorded in the engineer's daily diary.
The papers further indicate that the delay in filing a claim was attributable to
Mr. Jones' ignorance of the law and to the failure of the law firm he initially
consulted to take action on his behalf. It appears that current counsel was not
consulted until nearly one year after the accident.
The proposed claim alleges violations of Labor Law §§ 200, 240(1),
and 241(6) as the basis for liability of the State of New York as owner of the
work site. Although the proposed claim fails to set forth any specific
regulatory provision it alleges has been violated with respect to §241(6),
the motion papers, specifically counsel's reply affirmation, allege violations
of the following provisions of the Industrial Code: 12 NYCRR §23-1.7(b)(2),
and 12 NYCRR §23-9.7.
In acting upon an application for permission to file a late claim, the Court
must consider the six factors set forth in Court of Claims Act §10(6). It
is clear that no legally cognizable excuse for the delay in filing exists here.
Neither ignorance of the law (Sevillia v State of New York, 91 AD2d 792),
nor law office error is an acceptable excuse (Almedia v State of New
York, 70 AD2d 712). The absence of an excuse, however, is only one of the
factors considered by the Court in reviewing a §10(6) application, and does
not necessarily preclude the relief sought here (Bay Terrace Coop. Section
IV v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, 55 NY2d 979).
There was no dispute that the State had timely notice of the circumstances
underlying the proposed claim and an opportunity to investigate the same.
Similarly, defense counsel did not suggest that any substantial prejudice to the
State would result from the delay in filing. Accordingly, the Court finds that
these factors weigh in favor of granting the application. Because workers'
compensation provides only a partial remedy, this factor also weighs in favor of
granting the application.
It is the appearance of meritoriousness that is most significant. It would be
pointless to grant permission to file late if the proposed claim did not have at
least the appearance of merit (See, e.g., Prusack v State of New York,
117 AD2d 729). Generally, a proposed claim meets the appearance of merit
standard if it passes a twofold test: it must not be patently groundless,
frivolous, or legally defective, and, upon a consideration of the entire record,
there must be reasonable cause to believe a valid cause of action exists
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,
Labor Law §200 is a codification of the common-law duty of an owner or
contractor to exercise reasonable care to provide workers with a safe place to
work. There is a distinction, however, between those cases in which an injury is
caused by the defective condition of the premises, and those in which an injury
is the result of a defect in the equipment or its operation. "With respect to
the latter, the duty to provide a safe place to work is not breached when the
injury arises out of a defect in the subcontractor's own plant, tools,
materials, or methods, or through negligent acts of the subcontractor occurring
as a detail of the work, unless the owner or contractor exercised some degree of
supervision or control(citations omitted)" (Miller v Wilmorite,
Inc., 231 AD2d 843).
In this case, no showing has been made that the State's representatives
supervised or controlled the manner in which the warning cones were placed or
removed, or the manner in which the contractor's employees were transported to
or from their work site on the project. To the contrary, a tool box safety
meeting regarding "Riding in the back of pickups", which was held June 26, 1998,
and memorialized on Keeler Construction stationery, includes the following two
items under required action or follow-up: "Establish enforceable policy - - no
transporting of employees in the back of company vehicles" and "Review/research
safe methods of cone setting from back of pickup" (Exhibit B to Notice of
Motion). That report clearly suggests that it was the contractor, and not the
State, that was responsible for supervising such details of the work.
Accordingly, the proposed claim does not articulate a meritorious cause of
action based on Labor Law §200.
Labor Law §240(1) imposes a nondelegable duty upon an owner and general
contractor "to provide, to furnish, to place and to operate safety devices to
protect workers from the danger of falling from an elevated work site"
(Donovan v City of Buffalo, 185 AD2d 703, 704, citations omitted).
Claimant's counsel points to a number of cases holding that liability may be
imposed under §240(1) where a worker is injured in the course of unloading
materials from a truck. The Third Department case of Monroe v Bardin,
249 AD2d 650, involved a worker, standing about 7 ½ to 8 feet above the
ground on a truckload of bundles of logs, who was propelled off the truck when
the bands holding one bundle of logs broke as it was being unloaded. Another
Third Department case, Curley v Gateway Communications, 250 AD2d 888,
similarly involved a load of iron ductile pipe coming loose from under the
plaintiff on the truck bed and carrying him off the truck with it. Orr v
Christa Constr., 206 AD2d 881, decided by the Fourth Department, affirmed a
grant of summary judgment pursuant to §240(1) to a plaintiff who was
injured while unloading structural steel from a flatbed trailer and concluded
that the "[p]laintiff's work was clearly ‘necessary and incidental' to the
construction project (Mosher v St. Joseph's Villa, 184 AD2d 1000,
1002; see, Hagins v State of New York, 159 AD2d 941, affd 81 NY2d
921; Cox v LaBarge Bros. Co., 154 AD2d 947, lv dismissed 75 NY2d
808)." Finally, Cox v LaBarge Bros., affirmed a finding of liability
under §240(1) where a workman "stringing" gas pipes along a natural gas
pipeline under construction fell from the top tier of gas pipes on a flatbed
truck. The Court concluded that "stringing" the pipe, i.e., unloading and
placing it along the construction site, as opposed to merely delivering
materials to be stockpiled for future use, brought the activity within the
protection of the Labor Law.
The Fourth Department, however, has been equally clear in refusing to find
liability pursuant to §240(1) in other cases where a worker was injured
falling from a truck (See, Tillman v Triou's Custom Homes, 253 AD2d 254
[truck driver fell 4 ½ feet to the ground when truck tipped while he was
unloading cement blocks at a construction site from a 10-wheel flatbed truck on
which two outside rear tires had blown out]; Cipolla v Flickinger Co.,
172 AD2d 1064, 1065 [worker fell to floor while stepping down from truck's
damaged metal running board, about 1 ½ feet from the floor]; Colopy v
McCombs, Inc., 203 AD2d 920 [worker fell to the ground from a truck when he
was struck by the hydraulic boom of the truck, which was being used on a State
roofing project], and DePuy v Sibley, Lindsay & Curr Co., 225 AD2d
1069 [driver fell three to four feet to the pavement while unloading cabinets
from a truck when one of the ramps he had placed to assist in the unloading
collapsed]). In Tillman v Triou's Custom Homes, 253 AD2d 254,
supra, the Court noted that it was deciding the narrow question whether
the surface of a flatbed truck constitutes an elevated work surface for purposes
of Labor Law §240(1), and stated that the above referenced cases to the
contrary, among others, were factually distinguishable.
In Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, the Court of
Appeals made clear that not every elevation hazard was intended to be covered by
§240(1). The Court characterized the plaintiff's work, dismantling a hoist
on the roof of a building with the assistance of three others and his knee
injury from being struck by a steel beam that fell from the hoist, a height
about seven inches above his head, as "the usual and ordinary dangers of a
construction site, and not the extraordinary elevation risks envisioned by Labor
Law §240(1)" (84 NY2d, at 843).
Closest factually to the matter at bar, Dilluvio v City of New York, 264
AD2d 115, lv granted 274 AD2d 980, affd 2000 WL 1755099 (November
30, 2000), a First Department case, concluded that the plaintiff's §240(1)
claim had been properly dismissed. Plaintiff Dilluvio had been employed on a
repaving project on the Hutchinson River Parkway and had been injured when he
fell from the open tailgate of a pickup truck that was transporting him to a
point where he was to begin handing traffic cones from the truck to another
employee on foot who would then place them on the roadway. The Court concluded
that this activity was not one covered by §240(1). It relied upon the
Court of Appeals opinions in Misseritti v Mark IV Constr. Co., 86 NY2d
487; Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d
914; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, and Rocovich
v Consolidated Edison Co., 78 NY2d 509, which indicate that the statute is
intended to protect workers who labor under "exceptionally dangerous conditions
posed by elevation differentials," (Misseritti v Mark IV Constr. Co., 86
NY2d 487, supra, at 491); from a "narrow class of special hazards" (
Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914,
supra, at 915-916); and from "a significant risk inherent in the
particular task because of the relative elevation at which the task must be
performed or at which materials or loads must be positioned or secured"
(Rocovich v Consolidated Edison Co., 78 NY2d 509, supra, at
The First Department concluded that there was no exceptionally dangerous
condition or significant risk posed by the three-foot elevation differential
between the tailgate of the pickup truck and the ground. Further, the Court
noted that the danger posed to plaintiff really arose from the forward motion of
the truck, irrespective of height.
Dangers that are premised on height invoke section 240(1), while those that are
normally attendant to riding in a moving vehicle do not. The distinction is
particularly telling here since plaintiff and his co-worker were both seated in
the back of the pickup simply being transported the short distance to the area
where they would begin placing cones. Hence, at the time of the accident, the
pickup was not even being used as an elevated work platform, but merely as a
mode of transportation (Dilluvio v City of New York, 264 AD2d 115,
supra, at 119 [citations omitted]).
In addition, the Court came to the conclusion that §240(1) was not
implicated because the work plaintiff was doing did not constitute work on a
structure within the meaning of the statute.
Stripping the construction project to its essentials, what [the contractor] was
doing here was repaving a portion of the Hutchinson River Parkway. Repaving a
parkway at grade does not constitute work on a structure for purposes of Labor
Law section 240(1). Seeking to avoid application of this principle, plaintiff
contends that, because the roadway included an overpass or bridge, this road
repaving operation was in reality a bridge renovation project, and that such a
project constitutes work on a structure for purposes of the statute . . .
However, whether a worker is repaving the roadway of an overpass or repaving a
roadway on solid ground, the nature of the work is the same . . . .
In sum, Labor Law section 240(1) has no applicability to what in reality was a
vehicular accident on a road repaving project at grade. Nor does the fact that
part of the roadway includes an overpass invoke the statute. To reach a
contrary conclusion would mean that any accident occurring on a roadway repaving
project involving an overpass would ultimately be transfigured into a Labor Law
section 240(1) case. There is no indication that the Legislature ever intended
such a result (id., at 121-122 [citations omitted]).
Shortly before Dilluvio was decided, the Fourth Department had
reiterated its position that "[B]ecause a highway at grade is not a building or
structure within the meaning of section 240(1), that section imposes no duty
upon the owner of a highway under construction or repair (see, Sciora v New
York State Dept. of Transp., 226 AD2d 621, lv dismissed 88 NY2d 1017,
rearg denied, 89 NY2d 861; Matter of Dillon v State of New York,
201 AD2d 793, 793-794)" Spears v State of New York, 266 AD2d 898,
The record before the Court on this application contains no information on
whether bridge or overpass structures were a part of the project. Even assuming
that they were, however, the logic of the decision in Dilluvio is equally
applicable here. For the reasons set forth in Dilluvio, supra, I
conclude that there is no apparent merit to a cause of action under Labor Law
The proposed claim also alleges liability based upon violations of Labor Law
§241(6). That provision has been held to apply to highway repaving
projects (Mosher v State of New York, 80 NY2d 286). To make out a prima
facie cause of action under Labor Law §241(6), a claimant must allege that
the defendant violated a rule or regulation of the Commissioner of Labor that
sets forth a specific standard of conduct, as opposed to a general reiteration
of common law principles (See, e.g., Ross v Curtis-Palmer Hydro-Elec.
Co., 81 NY2d 494, supra; Adams v Glass Fab, 212 AD2d 972).
Violation of the safety regulation must also be shown to be a proximate cause of
the accident (Ares v State of New York, 80 NY2d 959; McCullum v
Barrington Co. & 309 56th St. Co, 192 AD2d 489).
The first regulatory provision relied on, 12 NYCRR § 23-1.7(b)(2),
provides as follows:
(2) Bridge or highway overpass construction.