New York State Court of Claims

New York State Court of Claims

BIGGS v. STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY, AND NEW YORK STATE CANAL CORPORATION, a Subsidiary Corporation of the New York State Thruway Authority, #2001-018-088, Claim No. NONE, Motion No. M-62319


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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Defendant's attorney:
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Signature date:
June 5, 2001

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See also (multicaptioned case)


Movant brings this motion seeking permission to file a late claim. Defendants oppose the

relief requested. The Court has considered the following documents in determining the motion:

Notice of Motion......................................................................................1

Affirmation of Trisha R. Schell-Guy, Esquire in support with

all exhibits attached thereto..........................................................2

Affidavit of Robert Biggs in support........................................................3

Proposed claim..........................................................................................4

Amended Notice of Motion.......................................................................5

Supplemental Affirmation of Trisha R. Schell-Guy, Esquire in support...........................................................................................6

Affirmation of Keith M. Frary, Esq. in Opposition...................................7 The proposed claim alleges that on September 2, 1998, at moveable dam 8 at Lock E-12 of the Erie Canal, Milepost 197.80, in the Town of Fort Hunter, County of Montgomery, Movant was employed as a laborer for Kubricky Construction Corp., the general contractor on the dam construction site. The dam is owned by the State of New York. On that date Movant was struck by a falling pipe while he was standing on a form, which caused him to lose his balance and fall sustaining serious injuries. Movant's claim seeks damages for violation of the Labor Law Sections 200, 240, 241, and the New York State Industrial Code Regulations: 12 NYCRR 23-1.5, 12 NYCRR 23-1.7, 12 NYCRR 23-1.16, 12 NYCRR 23-1.21, 12 NYCRR 23-1.22, 12 NYCRR 23-5.1, et. seq.

In deciding this motion the Court must give consideration to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor is whether the delay in filing the claim is excusable. Movant asserts that the delay in filing the claim was due to his lack of awareness that he had any recourse for his injuries other than Worker's Compensation. Unfamiliarity with the law does not excuse the failure to timely file. (See, Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540, 540) Movant further asserts that he did not realize the extent of his injuries until eight months after the accident when he returned to work after being laid off and found that he was unable to perform his duties due to right shoulder pain. One need not know the full extent of his injuries to serve a notice of intention. (See, Atterbury v State of New York 26 Misc 2d 422, 424) Furthermore, Defendant submits the unchallenged assertion that immediately after the accident, Movant continued to work at his job as a laborer through September 18, 1998. Movant does not provide any explanation why he could work as a laborer for roughly two weeks after the incident but when he returned to work eight months later, he suffered shoulder pain which prevented him from continuing his employment. There is no suggestion that the job he returned to eight months later was any different than the job he had at the time of his fall. The Court finds that this factor weighs against granting Movant's application.

The next factors, whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant argues that the State had notice of the essential facts, since immediately after the incident he reported it to the project superintendent, a Kubricky Construction Corporation employee, and at that time, Department of Transportation inspectors were on the job site. Movant asserts that it was the usual practice for the job superintendent to consult with the Department of Transportation Inspectors daily. Aside from this opportunity for the exchange of information, Movant makes no assertion that the Department of Transportation was ever actually notified of the accident. Movant's counsel asserts that she received copies of the "Employer's Report of Work-Related Accident/Occupational Disease" and copies of records from St. Clare's Hospital from the New York State Thruway Authority, thereby inferring that the State must have known about the accident. Unfortunately this theory is undermined by the correspondence dated September 9, 1999, from a James Quinn, Resident Engineer of M. J. Engineering and Land Surveying, P.C., to a Ralph Coon of the New York State Thruway Authority, responding to Mr. Coon's inquiry the day before, for information regarding an accident involving Movant on September 2, 1998. (Schell-Guy Affirmation, Exhibit C) It is quite apparent from the letter that the State had no prior notice of the accident. The mere fact that the State had the opportunity to access these records does not warrant a finding that it had notice. (Cf., Matter of Aviles v New York City Health & Hosp. Corp., 172 AD2d 237; Matter of Gavigan v State of New York, 176 AD2d 1117) It appears to this Court from the documents submitted, that the first notice the State received was Movant's counsel's Freedom of Information Law (FOIL) request for information regarding the accident dated August 26, 1999, almost one year after the accident. Accordingly, the State did not have notice or an opportunity to investigate the circumstances surrounding the accident. The Defendant does not claim any prejudice by the late filing of the claim; however, given the transitory nature of the conditions surrounding this accident, the passage of time, and the fact that the report of the accident does not provide the names of any witnesses, it seems to the Court that some prejudice may result if the late claim is permitted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11) The proposed claim sets forth three separate causes of action under the Labor Law for violations of Labor Law Section 200, 240, and 241(6) .

Labor Law Section 200 is a codification of the common law duty of a landowner to provide and maintain a safe place to work. (Ross v Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 505) Generally, where the defect complained of is not part of the land itself, but instead arises out of the contractor's negligent acts, no liability extends to the owner of the premises under Labor Law Section 200 unless the owner exercises supervisory control over the work. (Rapp v Zandri Constr. Corp., 165 AD2d 639, 641-642) Here the allegation of negligence arises from the contractor's failure to provide safety equipment and properly secure a pipe, rather than a defect with the dam itself. Movant has alleged that New York State Department of Transportation inspectors were at the job site daily, and exercised supervision and control. The Court accepts Movant's allegations as true for purposes of determining this motion, since these allegations were not denied by the State. Accordingly, Movant has established the appearance of merit for this cause of action.

Labor Law Section 240(1) imposes upon contractors and owners, except owners of one and two-family dwellings, involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure the duty to furnish or erect scaffolding, hoists, stays, ladders slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices to be constructed, placed and operated to give proper protection to a person so employed. The statute imposes absolute liability for injuries sustained as the result of an elevation-related hazard incurred while engaged in one of the described activities, where proper safety devices were not provided, regardless of whether or not the owner exercised supervisory control. (Ross v Curtis-Palmer Hydro Elec. Co., supra at 499-501) Movant was apparently standing on a form and reaching up to secure a pipe when another pipe fell and struck Movant causing him to lose his balance and fall. Although the details are sketchy, Movant has minimally set forth sufficient facts for this Court to find that there is reasonable cause to believe that this cause of action has the appearance of merit.

Labor Law section 241(6) also imposes upon all contractors, and owners regardless of control or supervisory obligations, the duty to provide reasonable and adequate protection and safety to persons employed performing construction, excavation or demolition. This statute however is not self-executing and requires demonstration of a violation of specific administrative rules promulgated by the Commissioner of the Department of Labor. (Ross v Curtis-Palmer Hydro Elec. Co.supra; Tillman v Triou's Custom Homes, Inc., 253 AD2d 254, 257-258; Adams v Glass Fab, Inc., 212 AD2d 972, 973) The specific regulations relied upon must set forth clear specifications to be complied with, as opposed to general safety standards. (Ross v Curtis-Palmer Hydro Elec. Co., supra at 505; Narrow v Crane-Hogan Structural Systems, Inc., 202 AD2d 841, 842). Movant cites violations of several regulations, however some contain general safety standards such as the first cited regulation 12 NYCRR 23-1.5. (Dann v City of Syracuse, 231 AD2d 855, 856; Stairs v State Street Associates, L.P., 206 AD2d 817, 818) The balance of the regulations Movant alleges were violated, 12 NYCRR 23-1.7, "Protection from general hazards"; 12 NYCRR 23-1.16, "Safety belts, harnesses, tail lines and lifelines;" 12 NYCRR 23-1.21, "Ladders and ladderways;" 12 NYCRR 23-1.22, "Structural runways, ramps and platforms;" 12 NYCRR 23-5.1, "General provisions for all scaffolds," at least arguably contain several subsections which have specifications sufficient to sustain a cause of action under Labor Law Section 241(6). Unfortunately no specific subsections were identified. This lack of specificity, coupled with the limited description of how the accident occurred makes it impossible to determine whether there is a relationship between the failure to comply with the described regulations and the manner in which the accident occurred. As a result, Movant has failed to show that this cause of action has the appearance of merit.

The final factor is whether the Movant has any other available remedy. Movant asserts that he has no other remedy for the pain and suffering he has suffered or the permanent damage to his shoulder. However despite the fact that it may not be a complete remedy, Movant is receiving Worker's Compensation. The Court finds this factor weighs against granting Movant's application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES Movant's motion without prejudice.

June 5, 2001
Syracuse, New York

Judge of the Court of Claims