New York State Court of Claims

New York State Court of Claims

ORTLIEB v. THE STATE OF NEW YORK, #2001-007-143, Claim No. NONE, Motion No. M-64342


Claimant made an application for permission to late file a claim premised upon alleged Labor Law violations. He was struck by a large pipe that fell into a ditch where he was working. Motion granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was December 19, 2001. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Michael J. Longstreet, Esq.,
Affidavit of Claimant, Annexed Exhibits, Proposed Claim 1, 2, 3, 4, 5
Affidavit in Opposition of Dennis M. Acton, Esq. 6

Reply Affidavit of Claimant, Annexed Exhibit 7

On November 14, 2000, claimant was allegedly employed by Syracuse Constructors, Inc. as a laborer on a water line project in the Town of Malone, Franklin County, near the intersection of State Route 11 and County Route 24. He asserts that his employer had contracted with the Town of Malone to perform work at the site and that the job was located on property owned by the State. Claimant relates that he was working in a ditch, the dimensions of which he estimated as six feet deep, eight feet wide and 100 feet long. At approximately 1:15 p.m., a large cast iron pipe that reportedly weighed about 850 pounds rolled into the ditch where claimant was working. Claimant was struck by the pipe and purportedly sustained various injuries. He now seeks permission to file a claim against the State premised upon Labor Law sections 240(1) and 241(6).

Since the current motion was filed before the expiration of the underlying Statute of Limitations (CPLR art 2), it is therefore proper for the court to address the pertinent statutory factors (Court of Claims Act §10[6]). The factors weighed by the court on an application to late file include: (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available (Court of Claims Act § 10[6]). The court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any particular factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant states as excuses that he did not consult with an attorney until after the 90-day filing time had passed and that he was not aware of the short time frame for commencing a timely claim (Claimant's Affidavit, par. 20). A lack of knowledge of the filing requirements has consistently been held not to constitute an acceptable excuse (see, e.g., Matter of P.A. v State of New York, 277 AD2d 671; Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753). The first factor weighs against claimant.

The factors of notice, opportunity to investigate and substantial prejudice will be addressed jointly. Claimant relates the State inspectors were at the job site "once or twice a day" (Claimant's Affidavit, par. 3). Defendant responded to the notice issue with the affidavit of an attorney who has no personal knowledge regarding the incident. Defendant's failure to address directly the specific issue about the State inspectors with an affidavit from an employee knowledgeable about the project or by relevant documentary evidence is tantamount to remaining silent on the notice issue. The Appellate Division has held that the State cannot "use its own silence as a shield against an allegation that it has notice of essential facts constituting a claim" (Cole v State of New York, 64 AD2d 1023, 1024). Claimant further avers that an inspector from the Town of Malone was present after the accident and that his employer received immediate notice. The injuries necessitated removal of claimant from the work site via ambulance and he was treated at a local hospital. The court is convinced that the totality of the circumstances surrounding the accident indicate timely notice of the incident to defendant. The notice afforded an opportunity to investigate. The combined presence of notice and an opportunity to investigate negate substantial prejudice. All three factors weigh in favor of claimant.

The next factor, a meritorious claim, is particularly significant since it would be an exercise in futility to allow a meritless claim to proceed (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). The test applied to the merit factor is liberal, as the court merely considers whether the papers submitted establish reasonable cause to believe a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). Indeed, the fact that the court finds a claim sufficient to hurdle the low threshold necessary to establish a meritorious claim does not preclude defendant from subsequently moving for summary judgment dismissing the claim if the facts revealed through disclosure support such relief (Matter of Trader v State of New York, 277 AD2d 978).

Claimant asserts theories of liability against defendant based upon sections 240(1) and 241(6) of the Labor Law. Labor Law § 240(1) applies to cases premised upon both a falling worker and, as here, a falling object (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267-268). Liability under section 240 is "contingent upon the existence of specific types of elevation-related occupational hazards which result in injuries from an accident that is proximately caused by the failure to use, or the inadequacy of, a safety device of the kind enumerated" in the statute (Schwab v A.J. Martini, Inc., AD2d , 732 NYS2d 474, 476). Claimant alleges, inter alia, that the pipe that rolled into the ditch and struck him was "not secured by the type of securing device, such as * * * ‘bracing', ‘irons' and ‘other devices' * * * " (Proposed Claim par. 7). The papers before the court reflect that a gravity-related risk resulted in a large pipe, which allegedly was not secured, falling into a six-foot deep ditch and striking claimant. Such allegations are sufficient to satisfy the liberal standard for a meritorious claim within the meaning of section 10(6) of the Court of Claims Act.

A viable cause of action pursuant to Labor Law § 241(6) must be supported by allegations of a violation of a specific rule (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-505). Claimant has cited numerous regulations in support of his section 241(6) cause of action, including one which states: "All sides or banks, slopes and areas in and adjacent to any excavation shall be * * * cleared of * * * any other material which may slide, fall, roll or be pushed upon any person located in such excavation" (12 NYCRR 23-4.2[g]). The court finds such regulation adequate for the narrow purposes of the current motion to establish the merit of the section 241(6) claim.[1] The meritorious claim factor weighs in favor of granting claimant's motion.

Claimant has other available remedies in that he is seeking permission to commence an action against the Town of Malone and has filed a workers' compensation claim (see, Matter of Lockwood v State of New York, 267 AD2d 832, 833).

After weighing and considering the factors set forth herein the court is persuaded to grant claimant's application.

It is

ORDERED that claimant's motion is granted, and he is directed to serve his claim upon the Attorney General (either personally or by certified mail, return receipt requested) and to file the claim with the Chief Clerk of the Court of Claims (including the appropriate filing fee) within 35 days of the filed-stamped date of this decision and order, such service and filing are to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.

December 21, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] It is not necessary for limited purposes of this motion to address the other regulations claimant contends were violated.