New York State Court of Claims

New York State Court of Claims

SAVOIA v. THE STATE OF NEW YORK, #2002-016-070, Claim No. 105181, Motion Nos. M - 64325, CM - 64556


Synopsis



Case Information

UID:
2002-016-070
Claimant(s):
ANTHONY SAVOIA
Claimant short name:
SAVOIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105181
Motion number(s):
M - 64325
Cross-motion number(s):
CM - 64556
Judge:
ALAN C. MARIN
Claimant's attorney:
Capiello Hofmann & KatzBy: Elizabeth Blair Starkey, Esq.
Defendant's attorney:
Cerussi & SpringBy: Richard W. Ashnault, Esq.
Third-party defendant's attorney:

Signature date:
July 1, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Anthony Savoia has alleged he was injured while working on the Robert Moses Causeway in Suffolk County, which was done as part of a contract between the defendant State of New York and his employer, Weeks Marine Services. Mr. Savoia, a crane operator, while working on a crane barge adjacent to the Causeway, slipped and fell on its deck which had an "accumulation of debris, tools and materials." (Cl affirm in sup, exh 1, ¶¶ 5,6 & 8). Savoia was injured on November 8, 1999. On November 7, 2001, Savoia served his claim together with a motion seeking an order permitting the claim to be filed and served two years after its accrual; ordinarily under the Court of Claims Act (the "Act"), a lawsuit for personal injury sounding in negligence must be brought within 90 days (§10.3).[1]

Claimant's motion has two bases. One, he relies upon §10.6 of the Court of Claims Act, which permits the late filing of a claim; in the case of negligence, no later than three years following accrual. Secondly, he maintains that federal law authorizes a three-year limitations period.

Claimant maintains that inasmuch as the injury occurred in navigable waters of the United States, it is subject to federal maritime law, and 46 App USCA §763a applies. That provision establishes a three-year statute of limitations for a "suit for recovery of damages for personal injury or death or both, arising out of a maritime tort..."[2] For the predicate substantive law, claimant looks to the Longshore and Harbor Workers' Compensation Act, 33 USCA §§ 901 et seq., which covers workers, other than seaman, who are injured in such waters. [3]

In Alston v State of New York, 97 NY2d 159, 737 NYS2d 45 (2001), the Court of Appeals, relying on the United States Supreme Court's Alden v Maine ruling (527 US 707 [1999]), held that New York State's waiver of sovereign immunity in its consenting to be sued in the Court of Claims was not absolute, but was contingent upon compliance with the requisites of the Court of Claims Act, including the relevant filing deadlines. In Alston, the six months' limitations period established by §10.4 of the Act trumped the three-year period provided by the Fair Labor Standards Act, 29 USCA §201 et seq. Accordingly, Savoia's theory that a federal three-year statute of limitations for maritime torts obtains in his case cannot be sustained.
***
Subdivision 6 of §10 of the Act enumerates six factors to be considered in deciding a motion for permission to file a late claim; the six are not necessarily exhaustive, nor is the presence or absence of any one factor controlling[4]: namely, whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances; (3) defendant was substantially prejudiced; 4) the delay was excusable; 5) the claimant has an alternate remedy; and (6) the claim appears to be meritorious.

The first three factors of notice, prejudice and opportunity-to-investigate are closely related and may be considered together. Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Savoia contends that "NY State Inspectors were frequently on the site," apparently implying constructive notice, but supplying nothing beyond this assertion.[5] He also states that several days after the accident, a co-worker took photographs of the site which were given to representatives of Weeks Marine in September of 2000, and that the same person, Charles P. Hoenig, signed a witness report on the day of accident (cl affirm in opp [served 4/16/2002] ¶¶5, 7 and 8; the photos are exh 1). In ¶ 14 of his statement, Savoia argues that Weeks Marine had a duty to report to the defendant, but supplies no support therefor; in fact, claimant's papers do not include a copy, or relevant portions, of the contract between Weeks Marine and the State.

The defendant submits two unchallenged statements from Stanley Lechner and Thomas Langan. Lechner is the regional claims and records access officer for the Long Island region of the State Department of Transportation. He affirms that after searching, he could find no records relating to Savoia's fall; and that "[o]ur first notice of the claimant's allegations was a result of the instant motion" (def affid in opp, Lechner affirm ¶3). This lack of notice was confirmed in the affidavit of Langan, the corporate risk manager for Weeks Marine (¶7).

The State did not receive notice until two years after the incident. Even if we accept claimant's position that the receipt of the photographs by Weeks Marine in September of 2000 put the State on notice, that was some ten months after Savoia's fall. See Quilliam v State of New York, 282 AD2d 590, 723 NYS2d 389 (2d Dept 2001), in which a passage of eight months was found to substantially prejudice the defendant and deny it the opportunity to conduct a proper investigation. See also Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986) and Matter of Crawford v City University of New York, 131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986), where the notice to the relevant agency of the State (or college of City University) was made within two and 18 days, respectively. Moreover, according to Langan, the barge or carfloat was removed from the site and returned to Weeks Marine's Jersey City, New Jersey yard on November 6, 2000, well before defendant actually received notice (Langan affid ¶¶ 5 & 6). Mr. Savoia does not attempt to account for the location of the barge after January, 2000 (Savoia affirm ¶¶ 6 & 13). In sum, claimant fails to satisfy the three-factor group of notice, prejudice and investigatory opportunity.

With respect to the next factor, viz., whether there is a valid excuse for the lateness of the filing, claimant does not directly address the factor. He simply argues that excuse is "no longer the sina qua non for relief ... but is merely one of the factors to be considered" (cl mem of law, p. 6). It might be noted that claimant does not attempt to argue as an excuse that the law was unsettled, or in fact, settled, but the other way. In any event, the timing of claimant's filings does not indicate that it so responded. Ahern v State of New York, 244 AD2d 7, 676 NYS2d 232 (3d Dept July 9, 1998) affirming 174 Misc 2d 123, 662 NYS2d 684 (Ct Cl June 30, 1997), upheld the three-year Fair Labor Standards Act statute of limitations for investigators of the New York State Police. But then: Alden v Maine, supra was decided June 23, 1999 and Alston v State of New York at the Court of Claims (April 12, 2000), Third Department (March 8, 2001) and Court of Appeals (December 13, 2001) all ruled the same way - - upholding the shorter Court of Claims limitation against that of the federal Fair FLSA.

As to whether another remedy is available, the Longshore and Harbor Workers' Compensation Act, supra, like workers' compensation, is essentially a system of wage replacement. It is not equivalent to recovery for personal injury in a court of law. Consequently, claimant complies with the fifth factor in §10.6.

The sixth and final factor requires that the proposed claim appear meritorious. The Savoia claim alleges that the State was in violation of ¶¶ 200, 240 and 241 (cl affirm in sup, exh 1, ¶13). Section 200, a codification of the duty under the common law to maintain a safe work site, will not subject the site owner to liability where it lacks the authority to control the activity from which the injury resulted. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816 (1998). Section 240, commonly known as the scaffold law, more generally can be described as covering injuries from "risks related to elevation differentials." Rocovich v Consolidated Edison Co., 78 NY2d 509, 514, 577 NYS2d 219, 222 (1991). However, claimant's motion papers contain no credible information[6] to show that his fall might be comprehended by either §200 or §240 of the Labor Law. Savoia states that the "unsafe condition of the barge deck was open and obvious to the NYS inspectors" (cl affirm in opp, ¶6) - - then it must have been open and obvious to him (see for example, Isola v JWP Forest Elec Corp., 262 AD2d 95, 691 NYS2d 492 [1st Dept 1999]).

Subdivision 6 of §241 implicates property owners irrespective of whether control, direct or supervise the work on their property. Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978). Section 241.6 does require that the safety violation be based upon a safety regulation promulgated by the State Labor Department. Claimant proffers 12 NYCRR §23-1.7(e), which in relevant part ([e][2]) provides that:
floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials ... as may be consistent with the work being performed
Claimant's photographs show the reinforcement bars neatly clustered, (cl affirm in opp [served April 16, 2002], exh 1). He argues that they had "nothing to do with the work we were doing on the barge" (affirm in opp [4/16/2002], ¶ 6), but offers no proof that in fact what was on that barge was not "consistent with the work being performed."

Finally, §10.6 provides that the proposed claim contain the information required by §11 of the Act, which requires the claim "state the time when and place where such claim arose..." (§11.b). Obviously, the provision does not read "time and date," but "time" would seem to necessarily comprehends such. In any event, the fact that Savoia does not include the time of day in his claim, or even the portion of the day (e.g., the morning) is another indicia of its lack of solidity; in fact, it may well be "legally defective." Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402 (Ct Cl 1977). Savoia's claim is, at best, on the cusp of bearing the appearance of merit.
***
In view of the above consideration of the criteria set forth in §10.6 of the Act, and having reviewed the submissions of the parties[7], IT IS ORDERED that Anthony Savoia's request for permission to file a late claim (M - 64325) be denied, and IT IS FURTHER ORDERED that the Cross-Motion (CM - 64556) be granted and that claim no. 105181 be dismissed.


July 1, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Unless a notice of intention to file a claim is served within the same period, then a claimant has two years to bring his claim.

[2] This provision, which includes injury as well as death, is codified adjacent to the Death on the High Seas by Wrongful Act statute, 46 App USCA §761 et seq, but, per the Historical and Statutory Note, "was not enacted as part of the Death on the High Seas Act which comprises this chapter."

[3] The Court of Appeals has declined (by a four-to-two vote) to hold that federal maritime law preempts New York Labor Law §§200, 240.1 and 241.6; the majority

was not persuaded by the fact that §240.1 is a strict liability statute and maritime law is negligence-based. Cammon v City of New York , 95 NY2d 583, 721 NYS2d 579 (2000).

[4]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys.,55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
[5] Paragraph 4 of the undated Affirmation in Opposition served April 16, 2002.
[6] The unsubstantiated reference to on-site state inspectors, will not satisfy Rizzuto, supra.

[7]From the claimant: Notice of Motion and Affirmation in Support together with exhibit 1, the Claim; an undated Affirmation in Opposition [affirmation in support of the claim and in opposition to defendant's cross-motion] by the claimant Anthony Savoia served April 16, 2002 containing exhibits1 and 2; Affirmation in Opposition dated April 22, 2002 containing exhibit 1; Memorandum of Law in Opposition to Cross-Motion. From the defendant: Notice of Cross-Motion and Affidavit in Opposition (with Stanley Lechner Affirmation and Thomas Langan Affidavit) containing exhibits A though C; Memorandum of Law [in opposition to claimant's motion and in support of defendant's cross-motion]; Reply Affidavit with one exhibit, D.