Reply Affidavit 8
In the proposed claim submitted with this application (see Exhibit A to Items
alleges that he suffered
injuries on or about September 8, 1999, at the construction site for a State
correctional facility in Romulus, New York. Claimant alleges negligence against
the State, and asserts that the State is liable under Labor Law Sections 200 and
241(6). Claimant, an employee of the contractor constructing the facility,
alleges that he slipped and fell on scaffolding while he was in the process of
laying out forms in which concrete was to be poured.
As stated above, this accident occurred on or about September 8, 1999, and this
application was made approximately one year following the date of the accident.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim 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 to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
As set forth in the supporting affirmation submitted with this motion, (see
Item 2), claimants retained their present counsel in May, 2000. Apparently,
Mr. Bush had retained counsel shortly after the incident to represent him in
connection with his worker's compensation claim, but this attorney had not
pursued any potential claim in this Court. After claimants' current counsel
were retained, they conducted an investigation into the ownership of the
property on which the correctional facility was being constructed. Upon
determining that the State was in fact the owner of this property, claimants'
counsel then submitted this application.
With regard to excuse, therefore, claimants argue that it took them
approximately one year to both determine ownership of the property and realize
that they had a potential claim against the State, and then made this
application once it was determined that the State was the owner of the property.
Therefore claimants argue that they were justified in not serving or filing a
claim within the applicable time period. Although the moving papers do not
indicate when claimants' former counsel was either retained or discharged, it is
evident that they were represented by counsel during the time period in which
either a claim or notice of intention could have been legally served and/or
filed, and that this counsel made no attempt to institute a claim in this Court.
It was only upon the retention of claimants' present counsel, approximately
eight months after the incident, that a potential claim against the State was
even considered, and then an additional four months transpired before an
application was made to this Court. It is equally clear that neither ignorance
of the law (see, Modern Transfer Co. v State of New York, 37 AD2d 756),
nor law office error (see, Almedia v State of New York, 70 AD2d 712; see
also, Szmulewicz v State of New York, 29 Misc 2d 298) is a reasonable
excuse to properly and timely serve the claim. The Court therefore does not
find that claimants have established a reasonable excuse.
In order to establish a meritorious cause of action, claimant has the burden to
show that the proposed claim is not patently groundless, frivolous, or legally
defective, and that there is reasonable cause to believe that a valid claim
exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d
1). In this proposed claim, claimant has asserted causes of action based upon
violations of Labor Law § 200 and § 241(6).
Labor Law § 200 is a codification of the common law duty of a land owner
to provide and maintain a safe place to work. Generally, in order to establish
liability under this section, proof is required that the land owner exercised
supervisory control over the work which caused the injury (Comes v New York
State Electric and Gas Corporation, 82 NY2d 876; Rapp v Zandri Constr.
Corp., 165 AD2d 639). Although claimant has not made any allegations in his
claim as to how the State exercised supervision or control over the work
involved, for purposes of this motion only the allegations alleging a violation
of Labor Law § 200 do establish the appearance of merit for this cause of
Labor Law § 241(6) imposes upon contractors and owners, regardless of
supervisory control, the duty to provide reasonable and adequate protection and
safety to workers performing construction, excavation or demolition duties. In
order to establish a proper claim under this section, the claimant must cite
specific regulations setting forth specific safety standards to be complied
with, as opposed to those regulations which merely restate general safety
standards (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 505).
In this claim, claimant has made reference to several provisions of the federal
Occupational Safety and Health Act (OSHA). Violations of OSHA rules, however,
do not support a claim based upon a violation of Labor Law § 241(6)
(Ferreira v Unico Service Corp., 262 AD2d 524).
Claimant has also alleged violations of various provisions of the New York
Codes, Rules and Regulations. Based upon the allegations set forth in the
proposed claim, it appears that many of the cited provisions are clearly
inapplicable. However, claimant has cited a violation of 12 NYCRR § 23-1.7
pertaining to slipping hazards, and since claimant has alleged in his proposed
claim that he slipped on scaffolding, such provision may be applicable herein.
Accordingly, for the purposes of this motion, it appears that claimant has
barely satisfied the minimal requirements requiring him to plead a cause of
action with an appearance of merit.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. Claimant argues that the State had notice of the
essential facts constituting the claim based upon reports made by claimant's
employer to the State, and that a State inspector was at the work site on a
daily basis. In his supplemental affidavit submitted in support of this motion
(see Item 4), claimant's attorney makes specific reference to the "Accident
Report Notification" filed by William Serrett, the site representative on this
construction project for the State Office of General Services, as well as an
"Accident Report" provided to the State Office of General Services Design and
Construction (see Exhibit A to Item 4). Claimant's attorney also makes specific
reference to claimant's "Workman's Compensation Accident Report" and the
employer's report also provided to the Worker's Compensation Board (see Exhibit
B to Item 4).
These reports, however, uniformly state that claimant injured his lower back
while adjusting "cast in place beam tables" in building 8, A wing. The reports
also indicate that claimant continued to work following this incident, and that
the incident was not reported to his employer until approximately two weeks
after this accident.
Significantly, there is no mention in any of these reports that claimant's
injuries resulted from a slippery substance being located on a scaffold, or that
he slipped on anything whatsoever. From these reports, the only conclusion one
can draw is that claimant strained his back while making an adjustment to a
piece of equipment, as there is no reference whatsoever to defective equipment
or scaffolding. Since there is no mention in these reports of the allegedly
defective condition which caused claimant to slip and fall, and nothing to
connect his injuries to any negligence on the part of the State, these reports
did not provide the State with any notice whatsoever of a potential claim.
Quite to the contrary, the statements in these reports bear no resemblance
whatsoever to the facts alleged in the proposed claim.
By virtue of the fact that the State did not have any notice of a potential
claim, the State has lost any and all opportunity to conduct a meaningful
investigation into the facts and circumstances surrounding this claim. Claimant
alleges that he slipped on an oily substance on the scaffolding. Contrary to
the statements contained in the accident reports filed shortly after this
accident, the State did not receive any notification of these allegations until
the service and filing of this motion, approximately one year after the date of
the accident. Since the scaffolding has long since been disassembled, and the
construction has been completed, the State has lost any meaningful opportunity
to examine the scaffolding and interview potential witnesses. Given the
transitory nature of the conditions surrounding this accident, the passage of
time, and the inconsistent statements contained in the previously filed accident
reports, the Court finds that the State, without notice and an opportunity to
investigate, would be substantially prejudiced if the Court were to grant this
The final factor is whether claimant has any available remedy. From the
documents and affidavits submitted with this application, it is apparent that
claimant has pursued his rights to benefits under the Workers' Compensation Law.
The right to receive Workers' Compensation Benefits can serve as an available
remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73
NY2d 710), even though it may be a partial remedy (Garguiolo v New York State
Thruway Authority, 145 AD2d 915).
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors as set forth herein, and
taking into strong consideration the fact that the State would be substantially
prejudiced if this application were granted, based upon the fact that it had no
notice of the essential facts constituting the claim nor any opportunity to
investigate, the Court is of the opinion that the claimants should not be
allowed to file their proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-62454 is hereby DENIED.