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'
As set forth in the proposed claim, claimant
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
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
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.
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, §
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, §
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