Floyd McCann (Movant) and his wife, derivatively, seek the Court's permission
to late file a claim against the Defendant alleging common-law negligence and
violations of Labor Law §§ 200, 240 (1) and § 241 (6).
Movant, an employee of a subcontractor, alleges the accident occurred on March
10, 2000 at a construction site in Albany County on Route 85, on a project which
involved the replacement of a bridge. At the time of the accident, steel beams
were being loaded onto a flatbed truck. As a beam was released onto the
flatbed truck, Movant alleges the steel beam fell to the ground, bounced and
then struck him, injuring his leg.
Defendant opposes the motion on each of the statutory factors.
As a threshold issue, the Court must determine whether Movant's application for
permission to late file his claim was timely filed within the relevant statute
of limitations provided by Article 2 of the CPLR. The failure to file such
application within the proscribed time period "creates a jurisdictional defect
and the court is without discretionary power to grant nunc pro tunc
relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied
64 NY2d 607 [emphasis omitted]). The causes of action presented herein are
governed by the three year statute of limitations set forth in CPLR 214. As
such, the instant application filed and served on September 18, 2002
(see, CPLR 2211) is timely made.
It is well-settled that the factors a 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 (see, Matter of
Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop.
Section IV v New York State Employees' Retirement System, Policemen's &
Firemen's Retirement Sys., 55 NY2d 979, 981).
Movant has conceded that there is no reasonable excuse for the delay in filing
the claim as it is well settled that ignorance of the law, the excuse offered by
Movant (McCann Affidavit ¶ 10) is not an acceptable excuse
(Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654).
Also unexplained is the delay between consultation with counsel and the making
of this application. Accordingly, this factor weighs against Movant's
The factors of notice, opportunity to investigate and prejudice can be viewed
together. Defendant asserts that "other than self-serving statements"
(Aronson Affirmation ¶ 7) movant has failed to establish "adequate,
timely or proper notice" to the Defendant (Id.). Notably, defense counsel's
affirmation is silent with respect to the completed New York State Department
of Transportation, Construction Division "Initial Notification of Work Zone
Accident - Form A" which is appended to Movant's application (Smolak
Affidavit, Exhibit B). This form, dated the day after the accident,
contains many of the factual particulars necessary to investigate this accident
and was completed by a New York State employee in charge of the construction
site (Smolak Affidavit ¶ 8; see, Carmen v State of New
York, 49 AD2d 965, 966 [accident report, Workers' Compensation records gave
State abundant notice]). On this record, the Court cannot conclude that
Defendant lacked notice of the essential facts or that Defendant has been
precluded from a meaningful opportunity to investigate the allegations. Other
than by reference to the passage of time, Defendant has not established that it
is substantially prejudiced. The Court finds these factors weigh in favor of
the instant application.
The most decisive component in the algorithm in determining a motion under
Court of Claims Act § 10 (6) is whether the proposed claim appears to be
meritorious, 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, 10).
Claimant must establish 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
Auth., supra, at 11). Claimant need not establish a prima facie case
at this point, but rather the appearance of merit (see e.g., Jackson v State
of New York, Claim No. NONE, M-64481, Midey, J., February 19, 2002) a
standard which has been described as a "low threshold" (Bernard v State of
New York, Ct Cl, Bell, J., August 8, 2000, UID#2000-007-043, Motion No.
M-61948 ). Generally, in reviewing the allegations in the proposed claim any
"[f]acts stated in a motion for leave to file a late claim against the State are
deemed true for purpose of motion, when not denied or contradicted in opposing
affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d
454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Defendant raises a
number of objections to the merit of the proposed claim.
This Court is of the view, contrary to Defendant's assertion (Aronson
Affirmation, ¶ 9), that the proposed claim, for purposes of this
motion, does not require an expert affidavit to establish the appearance of
merit. Both Movant's detailed affidavit and common knowledge support the
conclusion that the presence of safety devices, such as a tag line (see,
O'Keefe v State of New York, Ct Cl, Sise, J., UID #2002-028-013, Claim
No. 98412, Motion Nos. M-64073, CM-64195), may have prevented the steel beam
from falling off the flatbed truck and striking Movant as it was lowered onto
Similarly unavailing is Defendant's objection to the appearance of merit based
upon Movant's failure to establish the Defendant owned the worksite (Aronson
Affirmation, ¶ 7). Movant has satisfied its initial burden by alleging
the State was the owner of the bridge on Route 85 (see, Smolak Affidavit,
Exhibit A, Proposed Claim, ¶ 3; see also ¶¶ 7 and 11). While
Defendant questions this statement (Aronson Affirmation ¶ 7),
Defendant does not deny ownership nor contradict the assertion (see,
Sessa, supra), and as such the Court accepts Movant's allegation as
to those proposed causes of action which require ownership as an element.
Labor Law Section 240(1) imposes upon contractors and owners, except owners
of one and two-family dwellings, involved in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure
the duty to furnish or erect scaffolding, hoists, stays, ladders slings,
hangers, blocks, pulleys, braces, irons, ropes, and other devices to be
constructed, placed and operated to give proper protection to a person so
employed. The statute imposes absolute liability for injuries sustained as the
result of an elevation-related hazard incurred while engaged in one of the
described activities, where proper safety devices were not provided, regardless
of whether or not the owner exercised supervisory control. (Ross v
Curtis-Palmer Hydro Elec. Co., 81 NY2d 494, 499-501).
Defendant denies the merit of Movant's Labor Law § 240(1) cause of action,
relying on Klever [sic] v State of New York
for the proposition that "unloading a
truck is not an elevation-related risk" (Aronson Affirmation
, ¶ 8).
In the first instance, Jacome v State of New York
(266 AD2d 345)
is readily distinguished as to the appearance of merit in that unlike the steel
, which simply slid on the truck bed, the steel in the instant
proceeding is alleged to have fallen off the truck before striking and injuring
Movant. As such, Movant correctly characterizes this claim as being a "falling
object" claim (Smolak Affidavit
, ¶ 10). Moreover, this
characterization is consistent with the Court of Appeals decision in Narducci
v Manhasset Bay Assoc
. (96 NY2d 259), decided after Jacome
distinguished between "falling objects" and "falling workers" There, the Court
( Id. at 268). Therefore, for Labor Law § 240 (1) to apply,
it is not enough for a claimant to show that an object fell causing injury to a
worker but rather that "the object fell, while being hoisted or secured, because
of the absence or inadequacy of a safety device of the kind enumerated in the
statute" (Id.). Movant's affidavit, for purposes of this motion,
establishes that an enumerated safety device was necessary and expected
(Narducci v Manhasset Bay Assoc., supra at 268). Whether that in
fact remains the case (see, e.g., Isabell v U.W. Marx, Inc., __ AD2d ___,
2002 WL 31521140, 2002 Lexis 10744, [Third Dept., November 14, 2002]), is a
question to be decided another day. Accordingly, for purposes of this motion,
Movant has established the appearance of merit of the allegations alleging a
violation of Labor Law § 240(1).
Labor Law § 241(6) imposes upon contractors and owners, regardless of
supervisory control, the duty to provide reasonable and adequate protection and
safety to workers performing construction, excavation or demolition duties. In
order to establish a proper claim under this section, the claimant must cite
specific regulations setting forth specific safety standards to be complied
with, as opposed to those regulations which merely restate general safety
standards (Ross v Curtis-Palmer Hydro-Electric Co.
, 81 NY2d 494, at 505).
Here, Movant has alleged violations of Industrial Code sections 12 NYCRR
23-2.3, 23-2.3 (c) and 23-8.1(e)(5). Industrial Code section 12 NYCRR 23-2.3
(c), which requires the use of "tag lines ... to prevent uncontrolled movement
of [steel] panels or [structural steel] members" is both a specific regulation
(see, O'Keefe v State of New York
) and facially applicable
to the facts alleged. Accordingly, Movant has established the appearance of
merit of his Labor Law § 241(6) cause of
Labor Law § 200 is a codification of the common law duty of a landowner to
provide and maintain a safe place to work. Generally, in order to establish
liability under this section, proof is required that the landowner exercised
supervisory control over the work which caused the injury (Comes v New York
State Electric and Gas Corporation, 82 NY2d 876; Rapp v Zandri Constr.
Corp., 165 AD2d 639). Although Movant has made the barest of allegations
in his claim that the State exercised supervision or control over the work
involved, for purposes of this motion those allegations alleging a violation of
Labor Law § 200 and common law negligence do establish the appearance of
merit for this cause of action.
Inasmuch as the Court has found an appearance of merit to Movant's direct
causes of action, it necessarily follows, that the derivative claim on behalf of
Movant's spouse, likewise has the appearance of merit.
Accordingly, the Court is persuaded that Movant has proposed meritorious claims
for violation of the Labor Law §§ 200, 240, 241, as well as common law
negligence, and as such, this factor weighs in favor of the application.
Turning to the final factor of another available remedy, it appears that Movant
has pursued his Workers' Compensation remedy (see, Smolak Affidavit,
Exhibit B [C-2 form]) which causes that factor to weigh against Movant (see,
Biggs v State of New York, New York State Thruway Authority, and New York State
Canal Corporation, a Subsidiary Corporation of the New York State Thruway
Authority, Ct Cl, Fitzpatrick, J., UID #2001-018-088, Claim No. NONE, Motion
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Movant's motion for permission to file a late
Accordingly, Movant's application for permission to late file a claim is
GRANTED and Movant is directed to file and serve a claim identical to the
proposed claim, annexed as Exhibit A to the moving papers, and to do so in
conformity with the requirements of Court of Claims Act §§ 10 and 11
within thirty (30) days of the date this Decision and Order is filed.