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).
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..."
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.
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 ), 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
: 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
, 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
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 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
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
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.,
, 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
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
, 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]) provides that:
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.