New York State Court of Claims

New York State Court of Claims

STUBBS v. THE STATE OF NEW YORK, #2002-031-004, , Motion No. M-64117


Late claim motion alleging violation of Labor Law 241(6) denied .

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimants for an order permitting Claimants to file a late claim:
  1. Notice of Motion dated September 17, 2001
  2. September 17, 2001 Affirmation of Mark H. Cantor, Esq.
  3. Affidavit of Jesse F. Stubbs, sworn to September 21, 2001
  4. Opposing Affidavit of Thomas P. Cunningham, Esq., sworn to November 13, 2001 and annexed exhibits
  5. Affidavit of Marie Denning, sworn to November 12, 2001, and annexed exhibits

Upon the foregoing papers, and upon oral argument from counsel in this matter the motion is denied.

Jesse Stubbs and Nisaa Azeem request permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the"CCA"). Ms. Azeem's claim is derivative in nature and all references to "Claimant" refer to Jesse Stubbs unless otherwise specified. The proposed claim alleges negligence stemming from a June 29, 2000 incident which occurred at a construction project on Bailey Avenue in Amherst, New York. At the time, Mr. Stubbs was working for Holmes & Murphy, a contractor for the State of New York. He alleges that, while loading metal grates onto the back of a flatbed truck, he slipped on #2 stones and fell, injuring his left shoulder. After the accident, Claimant left the work site and went to the emergency room at Sisters of Charity Hospital where he was diagnosed with a torn left rotator cuff. He subsequently underwent surgery to repair the injury on August 11, 2000.

The proposed claim alleges that Defendant failed to take proper precautions to keep the area in which Claimant was working free of debris and obstructions, in violation of Subdivision (e) of 12 NYCRR 23-1.7. Claimants correctly point out that this regulatory provision sets forth a specific standard of conduct imposing a nondelegable duty upon a property owner or general contractor which will support an action under Labor Law section 241(6) (Tucker v Edgewater Const. Co., 281 AD2d 866; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimants, who only recently retained counsel, indicate that they did not file a claim earlier because they were not aware of their right to commence an action in the Court of Claims. They believed that their only remedy was to file for workers' compensation benefits. Claimants concede that this is not a legally recognizable excuse for their delay. This factor, therefore, weighs in favor of Defendant.

Claimant alleges in his affidavit that he has no other remedy. However, Claimants' counsel admitted during oral argument that Claimants may have a cause of action against the owner of the parking lot in which the accident occurred (a neighboring business) but that Claimant is not sure whether the accident occurred in the parking lot or on the adjacent sidewalk. Whether such other action is viable or not, I note that the right to receive workers' compensation benefits can serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though it may be a partial remedy (Garguiolo v New York State Thruway Authority, 145 AD2d 915). This factor, too, weighs in Defendant's favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant filed a report with his employer on the day of the accident (Defendant's Ex. A). Claimant concedes that, in the report, he failed to indicate where he slipped, on what he slipped, or even that he slipped at all. In those sections of the report which request information about the accident, Claimant indicated that he was injured "lifting frames onto truck" and that the cause of the accident was "heavy object." When prompted with specific language as to how the injuries were sustained and instructed to "describe fully, such as slipped, fell, was struck etc." Claimant indicated that his injuries were sustained " lift[ing] arms up to put frame on truck." The theory of liability set forth in the proposed claim is that the Claimant slipped on #2 stones. Defendant had no information from which it could determine that the accident had occurred in the manner in which Claimant now suggests. Claimant's failure to mention either slipping or #2 stones in his report deprived Defendant of notice of the essential facts constituting the claim.

Claimant alleges that, within a week of the accident, he filled out the necessary paperwork to file his workers' compensation claim. Claimant asserts that notice and therefore an opportunity to investigate may be imputed to Defendant as of the date that he filed his workers' compensation papers. Claimant further alleges that, not only did Defendant have the ability to review these papers, but that the insurance carrier handling (and purportedly investigating) his workers' compensation file (TIG Insurance Company) is the same carrier that would defend the State if this action were to proceed. Defendant points out that a different insurance carrier, in fact, would be responsible for the defense of this matter and that the workers' compensation carrier would investigate whether Mr. Stubbs was injured on the job, but not necessarily how Mr. Stubbs was injured. Further, due to the Claimant's own initial report, it was clear that Claimant was injured on the job and entitled to workers' compensation benefits, but there was no notice of, nor reason to suspect that his injury was the result of any alleged negligence. Because Defendant was unaware that the Claimant had slipped on #2 stones, no investigation was conducted.

Additionally, Claimant admits that the parking area where he believes his accident occurred is now paved. At the time of the accident it was not. The nature of the incident, the change in the construction area, and Claimant's inability to specify exactly where the incident occurred makes a meaningful investigation at this date an impossibility for Defendant, and significantly prejudices Defendant's ability to defend this action (Garguiolo v New York State Thruway Authority, supra; Gatti v State of New York 90 AD2d 840).

The final factor to be considered is merit. To have a valid claim under Labor Law §241(6), Claimant must allege a specific violation of the regulations of the Commissioner of Labor and he must demonstrate that the violation was the proximate cause of his injury. Claimant alleges that Defendant violated the provisions of Subdivision (e) of 12 NYCRR 23-1.7, which is entitled "Protection from general hazards." Subdivision (e) reads as follows:
(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of 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 and from sharp projections insofar as may be consistent with the work being performed.

The merit of the proposed claim hinges upon whether the area where Claimant was injured was either a "passageway" as set forth in subsection (1) or a "working area" as defined by subsection (2). Claimant's injuries were incurred at what Claimant himself described as a "staging area." This area was clearly not a passageway (Mendoza v Marche Libre Assocs., 256 AD2d 133) but was arguably a working area (see, Lenard v 1251 Ams. Assocs., 241 AD2d 391, appeal withdrawn, 90 NY2d 937). This factor tends to weigh in Claimant's favor.

However, upon reviewing and balancing all of the factors enumerated in CCA §10(6), I find that they preclude granting the relief requested. Claimants have failed to provide an excuse for their delay in filing a claim. I find that the State would be prejudiced by this delay because of the changed nature of the construction site where claimant was injured. Claimants have also failed to demonstrate that the State had either notice of the essential facts constituting the claim or an opportunity to investigate the alleged accident. Finally, the claim itself is of dubious merit and Claimant has a partial alternate remedy through Workers' Compensation.

ORDERED, that Claimants' motion for permission to file a late claim is denied.

February 15, 2002
Rochester, New York

Judge of the Court of Claims