New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2002-009-58, Claim No. NONE, Motion No. M-65466


Claimants' application for leave to serve and file a late claim was granted, to the extent that they were permitted to serve and file a claim based upon alleged violations of Labor Law, § 241(6).

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):

Claimant's attorney:
BY: Dom Cambareri, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Hiscock & Barclay, LLP
Robert A. Barrer, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants seek permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6). Claimant Mark A. Allen seeks damages for personal injuries allegedly suffered by him in a construction accident which occurred on September 28, 2001, while he was working on a project to repair a bridge located on New York State Route 49 in Constantia, New York. The claim of Christine Allen, the wife of Mark A. Allen, is derivative in nature.

The following papers were considered by the Court in connection with this motion:
Notice of Petition 1

Affirmation of Dom Cambareri, Esq. 2

Petition of Mark A. Allen, with Exhibits (including the proposed claim as Exhibit "A") 3

Memorandum of Law 4

Memorandum of Law in Opposition 5

Affidavit of Patricia M. Williams 6

Affidavit of Edmond Isabell 7

Supplemental Exhibits (Exhibit J and Exhibit K) submitted by claimants' attorney 8,9

As set forth in the proposed claim, claimant[1] was employed as a pile driver for State Wide Pile Driving on September 28, 2001, on which date he was working with Edmond Isabell at the Route 49 Bridge, Scriba Creek Repair Project. On that date, claimant and Mr. Isabell were preparing to hoist and lift a seven and one-half ton vibratory machine, utilizing a mobile crane. As they began to hoist the machine, the machine rocked back onto claimant's left foot. Claimant was then taken to a hospital for medical treatment, and was diagnosed with comminuted fractures of the first, second and third toes. After further medical treatment and consultations, Mr. Allen had his left large toe amputated on November 2, 2001. After several months of additional treatment and medical consultations, the remaining toes on claimant's left foot were amputated on June 20, 2002, in an attempt to reduce the continuous pain being suffered by claimant.

This application for permission to serve and file a late claim was made approximately one month following the second surgery. The claim is premised upon alleged violations of Labor Law, §§ 241(6), 200(1) and 240(1).

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 a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; 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).

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.

With regard to excuse, claimants argue that they did not have any information indicating any State involvement in the construction project during the first 90 days following Mr. Allen's incident. Additionally, claimants allege that Mr. Allen was undergoing substantial medical treatment during this 90 day period which precluded him from any opportunity to investigate the details as to the parties who were involved in this construction project.

In the papers and affidavits before the Court, however, there is no indication whatsoever that claimants made any attempt whatsoever to investigate this claim with regard to any potential claim against the State. Furthermore, as set forth in the papers before the Court, claimant began work as a logger on or about November 26, 2001, approximately two months after the incident. Since his medical condition did not prevent him from returning to work within the 90 days following the incident, it certainly would not have prevented him from pursuing a claim against the State within this same time period. Accordingly, the Court finds that claimants did not establish that their delay in filing this claim was excusable.

The factors of notice, opportunity to investigate, and lack of prejudice will be considered together. Claimants allege that the State had notice of the essential facts constituting the claim, as well as a reasonable opportunity to investigate the circumstances underlying the claim, since a State engineer-in-charge was allegedly present at the construction site on the date of the incident, and that this engineer-in-charge would possess sufficient documentation and information regarding the incident forming the basis of the proposed claim. In response, defendant has submitted the affidavit of Patricia M. Williams, who was employed by the Department of Transportation as the engineer-in-charge at this construction site. In her affidavit, Ms. Williams states that she did not witness the accident involving claimant Mark Allen, since she had moved to another location on the project before the accident occurred. She also states that after the date of this incident, she heard a "rumor of a near-miss occurring" (see Affidavit of Patricia M. Williams, Item No. 6, at par. 4), but added that she had not witnessed the near-miss and that she was unable to substantiate this rumor. She further states that an accident report pertaining to this incident with Mr. Allen was never filed, and that she was not personally aware of this incident until after she received notification of this motion. Based upon the above, the Court finds that claimants have made no showing that the State had any notice of the essential facts constituting the claim, or an opportunity to investigate the circumstances surrounding this claim, until the instant motion seeking permission to serve and file a late claim was brought. Since an accident report was never filed for this incident involving Mr. Allen, no other written reports were generated that would have been available to the State, and the only oral reports concerning this incident consisted of "rumors" of a "near-miss", this Court does not find that the State had any notice indicating potential State negligence in the causation of this accident.

Even though the State did not have any notice of the facts constituting this claim, or an opportunity to investigate, this Court finds, however, that the State will not be substantially prejudiced in the defense of this claim. Based upon the papers submitted with this motion, it does not appear that there is any substantial dispute as to how Mr. Allen was injured. Furthermore, claimant was injured at the precise time when he and his co-workers were packing up their equipment upon completion of their portion of the bridge construction project. Therefore, even if claimants had timely filed their claim within 90 days after the accident occurred, the Court finds that the State would not have had any more meaningful opportunity to investigate the accident site, or the circumstances surrounding the accident, than it does at the present time.

The Court therefore finds that the State will not suffer any undue prejudice should the Court allow this claim to be served and filed at this time.

In order to establish a meritorious claim, it is the burden of the claimant 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). Claimant only has to establish the appearance of merit and need not prove a prima facie case at this stage of the proceedings.

In this proposed claim, claimants have alleged violations of Labor Law, §§ 200(1), 240(1), and 241(6).

On a Labor Law, § 200 cause of action, a claimant must be able to establish that the State as an owner exercised some degree of supervision or control over the work site and that the owner had actual or constructive notice of the dangerous condition (Allen v Cloutier Constr. Corp., 44 NY2d 290). In their moving papers, claimants have not made any showing whatsoever that the State had actual or constructive notice of an unsafe condition, or that it exercised any degree of supervision or control over the work site. The Court therefore finds that claimants have not established an appearance of merit with regard to their § 200 cause of action.

Claimants also allege a violation of Labor Law, § 240(1), which imposes upon owners a non-delegable duty to implement appropriate safety measures to prevent gravity-related accidents, including those accidents in which a worker is struck by a falling object that was not adequately secured (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).

In this case, there is no dispute that claimant was injured when the vibratory machine was being hoisted. The machine, however, had not yet been elevated, and did not fall down on claimant's foot due to the effects of gravity. Rather, the machine came down upon claimant's foot when it began to "rock" as it was being lifted, while it was still on the ground. Claimants have failed in their attempt to portray this claim as one involving a "falling object" and, therefore, have not made a sufficient showing of a meritorious cause of action under the parameters of § 240(1) of the Labor Law (see, Fischer v State of New York, 291 AD2d 815; Puckett v County of Erie, 262 AD2d 964). Claimants have also alleged a cause of action based upon Labor Law, § 241(6), which imposes a non-delegable duty upon an owner of property to comply with concrete specifications set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., supra). In order to establish a prima facie cause of action under Labor Law, § 241(6), a claimant must allege that the State 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 (Ross v Curtis-Palmer Hydro-Elec. Co., supra).

In their proposed claim, claimants have alleged violations of 12 NYCRR 23-8, 12 NYCRR 23-6, and 12 NYCRR 23-4. The regulations cited in the proposed claim have been held sufficiently specific to sustain a cause of action under § 241(6) of the Labor Law (see, Puckett v County of Erie, supra; Fischer v State of New York, supra; Tillman v Triou's Custom Homes, Inc., 253 AD2d 254).

As mentioned previously herein, for purposes of this application, claimants only have to establish an appearance of merit, and do not have to establish a prima facie claim. Accordingly, the Court finds that claimants have asserted a meritorious cause of action alleging violations of Labor Law, § 241(6).

The final numerated factor is whether the claimants have another available remedy. In this case, it is undisputed that Mr. Allen has applied for and has received workers' compensation benefits, which is considered another available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though it may only be a partial remedy (Garguiolo v New York State Thruway Authority, 145 AD2d 915). Additionally, however, claimants have also acknowledged that a separate tort action has been commenced by them against the general contractor, Slate Hill Constructors, in Supreme Court. It therefore appears, that claimants do have other remedies available, and that they are pursuing these remedies.

Based on the foregoing, and upon weighing and considering all of the factors set forth in Court of Claims Act, § 10(6), it is the opinion of this Court that claimants should be allowed to file their proposed claim, limited to the extent that such claim seeks damages for a violation of Labor Law, § 241(6).

Accordingly, it is

ORDERED, that Motion No. M-65466 is hereby GRANTED, in part, to the extent that claimants are permitted to serve and file their claim, set forth as Exhibit A to Items 1 and 2, except that any causes of actions based upon violations of Labor Law, §§ 200 and 240(1) must be deleted.

Claimants are directed to serve their claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the filing date of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of Court of Claims Act, §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

December 9, 2002
Syracuse, New York

Judge of the Court of Claims

[1] Since the claim of Christine Allen is derivative in nature, all references to claimant, unless otherwise indicated, are to Mark A. Allen.