New York State Court of Claims

New York State Court of Claims

BARONE v. THE STATE OF NEW YORK, #2001-019-538, Claim No. None, Motion No. M-63377


Synopsis


Claimant's motion for permission to file a late claim based upon Labor Law 200 and 241 (6) is denied without prejudice.

Case Information

UID:
2001-019-538
Claimant(s):
RYAN A. BARONE The Court has amended the caption to reflect the State of New York as the only proper defendant in accordance with this Decision and Order.
Claimant short name:
BARONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption to reflect the State of New York as the only proper defendant in accordance with this Decision and Order.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-63377
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
BRINDISI, MURAD, BRINDISI-PEARLMANBY: Stephanie A. Palmer, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney Generral, of counsel
Third-party defendant's attorney:

Signature date:
July 2, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). Defendant State of New York opposes the motion, while Defendant the State of New York Dormitory Authority (hereinafter "Dormitory Authority") alleges the Court of Claims lacks jurisdiction over the Dormitory Authority in the first instance.


The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-63377, dated April 5, 2001, and filed April 16, 2001.
  2. Affidavit of Stephanie A. Palmer, Esq., in support of motion, sworn to April 5, 2001.
  3. Affidavit of Ryan A. Barone, in support of motion, sworn to April 3, 2001.
  4. Proposed Claim, dated April 3, 2001.
  5. Memorandum of Law in support of motion, dated April 5, 2001.
  6. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated May 2, 2001, and filed May 4, 2001.
  7. Affidavit of John E. Dorfman, Esq., in opposition to motion, sworn to April 18, 2001, and filed April 19, 2001.
  8. Reply Affirmation of Timothy R. Mandronico, Esq., in support of motion, dated May 4, 2001, and filed May 10, 2001.
Claimant alleges he was employed as a laborer by the Joseph Barone Construction Company on July 25, 2000. The Joseph Barone Construction Company had been hired as a subcontractor by the general contractor, George Yager Construction, for the installation of concrete sidewalks at the quad area of the Oneonta campus at the State University of New York. The State of New York is the owner of the site. The proposed claim describes the underlying incident as follows:
Claimant was assigned the task of installing steel frames for the installation of the concrete sidewalks, and while installing a steel frame, a concrete truck backed up towards claimant and the back tires of said concrete truck struck the steel frame Claimant was installing, causing the steel frame to kick up and strike Claimant in the face causing Claimant to sustain serious and permanent personal injuries and damages....

(Proposed Claim, ¶ 4). Claimant provides no other facts relative to this incident.


With respect to the jurisdictional argument of the Dormitory Authority, this Court agrees that it does not have subject matter jurisdiction over claims arising out of acts involving the Dormitory Authority. The Court of Claims is not a court of general jurisdiction. (CCA 9). The proper forum for actions against the Dormitory Authority is the New York State supreme court. (Gardner v State of New York, 62 Misc 2d 278). Simply put, the Court does not have subject matter jurisdiction to hear this claim as against the Dormitory Authority.


With respect to the State of New York (hereinafter "State"), the Court notes that it does have jurisdiction to review and determine this motion, since this motion was filed within the time period prescribed by Article 2 of the CPLR. (CCA 10 [6]). As such, the Court will proceed with an analysis of the statutory factors solely with respect to the State itself.


The substantive factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:


1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying

the claim,

4. the claim appears to be meritorious,

5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.


Claimant does not articulate any excuse for the delay other than the opinion that the State has not been prejudiced as a result thereof. This factor weighs against Claimant.


With respect to notice of the essential facts constituting this claim and whether the State had an opportunity to investigate the circumstances, Claimant's counsel avers "[u]pon information and belief, the [State] had actual knowledge of the underlying facts constituting the claim, through its contractors, agents, servants, and/or representatives, within ninety (90) days of the date of the incident." (Affidavit of Stephanie A. Palmer, Esq., ¶ 12). Although undisputed facts alleged in a motion for permission to late file will be accepted as true for the purposes of the motion (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976), such general conclusory assertions by counsel do not qualify for such acceptance. As such, the Court finds these two factors weigh against Claimant.


With respect to the next factor of whether the State has suffered substantial prejudice as a result, the State has not demonstrated to this court that despite the delay in filing it cannot now prepare and proceed to trial. Nor does the State argue that the delay in filing has generated an unfair advantage to the claimant. Accordingly, the Court finds the factor of prejudice to weigh in Claimant's favor.


Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant must establish his 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 Auth., supra, 92 Misc 2d, at 11). Here, the factor of merit must be separately addressed with respect to the proposed causes of action based upon Labor Law 200 and 241 (6).


Labor Law 200

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. With respect to owners, such as the State here, if the alleged defect is the contractor's methods or operation, rather than the premises, an owner who has not exercised any supervision or control over a contractor's methods or operations cannot be liable for defects ariseing therefrom. (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Here, no showing has been made by Claimant that any State representative supervised or controlled the manner in which the concrete work was performed or any facet of the work site itself including, but not limited to, securing the work site perimeter and/or controlling the construction vehicular traffic. Accordingly, this Court finds that the proposed claim does not set forth a meritorious cause of action based upon Labor Law 200.



Labor Law 241 (6)

The proposed claim also alleges liability based upon violations of Labor Law 241 (6). While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana v New York State Thruway Auth., supra, at 11-12). Nevertheless, the Court should be cognizant of what it takes to establish a prima facie cause of action on the stated theory of liability. In order to prove 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 (hereinafter "Industrial Code") that sets forth a specific standard of conduct, as opposed to a general statement of common law principles. The defendant's violation of that specific standard must also be shown to be a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959, 960).


Here, the proposed claim alleges violations of the following provisions of the Industrial Code: 12 NYCRR 23-1.5 (a); 23-1.5 (b); 23- 1.8 (c) (1); 23- 1.18; 23- 2.2; and 23- 2.3. However, neither party has provided the Court with an in-depth analysis of the cited Industrial Code provisions or alleged their applicability or inapplicability to these facts. Claimant merely states in conclusory fashion that the proposed cause of action is meritorious. The State, for its part, contends that "[r]eviewing the sections of the industrial code to which claimants cite they either recite general standards of care...or they are sections positing no specific concrete command or pertain to circumstances factually inapplicable to the instant matter." (Affirmation of James E. Shoemaker, AAG, ¶ 12, citations omitted). Moreover, as previously indicated, the factual allegations contained in the proposed claim and motion papers are minimal at best which makes it difficult for this Court to undertake any independent analysis. In sum, in this Court's view, Claimant failed "[t]o 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...." (Floyd v State of New York, Ct Cl., December 12, 2000, O'Rourke, J., Claim No. 102147, Motion No. M-62203, Cross-Motion No. CM-62302) and that said violations proximately caused Claimant's injuries. Consequently, this Court finds that the proposed claim does not set forth a meritorious cause of action based upon Labor Law 241 (6).


Finally, since it would appear that Claimant would have an available remedy against the general contractor, this final factor weighs against Claimant.


Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all important factor of merit, weigh against Claimant's request for permission to file a late claim pursuant to CCA 10 (6).


In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to late file, Motion No. M-63377, is DENIED without prejudice.


July 2, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims