7) Sur-reply Affidavit of William D. Lonergan, Esq., sworn to May 15,
Upon the foregoing papers and upon oral argument of counsel for the parties,
the motion is granted. Wayne Matyjasik brings this motion for permission to file
a late claim pursuant to §10(6) of the Court of Claims Act (the"CCA"). The
proposed claim alleges negligence stemming from a March 17, 2001 incident which
occurred at a construction project at the Buffalo State Teachers College at the
State University of New York, Buffalo State College. At the time of the alleged
incident, Claimant was working for Donald J. Braasch Construction, with whom
Defendant had contracted for the removal of asbestos in or near an air
conditioning unit located on the roof of the building. Claimant asserts that
part of the project involved removing the air conditioning unit from what
Claimant describes as a recessed area, or vault, in the roof. According to
Claimant, to accomplish this it was necessary to remove the catwalk which
encircled the unit and also protected workers from falling to the floor of the
recessed area. Claimant alleges that, in the process of doing his job, he was
required to step across the open area, where the catwalk had been, between the
roof and the air conditioning unit. He allegedly slipped while stepping across
this span and fell approximately 20 feet to the floor of the vault. He alleges
that he sustained, inter alia, a fractured humerus and two torn rotator
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).
This motion was filed approximately eight months after Claimant's accident. As
for his excuse for the delay, Claimant alleges that he did not realize initially
how severe his injuries were and that, failing to contact an attorney earlier,
he believed that his exclusive remedy was to file a Workers' Compensation claim.
These are not legally cognizable excuses and therefore this factor weighs in
Defendant's favor. The absence of an excuse, however, is only one of the
factors considered by the Court in reviewing a §10(6) application and does
not necessarily preclude the relief sought here (Bay Terrace Coop.,
Claimant admits that he was entitled to benefits available to him under the
Workers' Compensation Law. 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 alleges that he believes that
Defendant had notice of the accident as his supervisor was present at the time
of the accident and had a contractual obligation to report the accident to the
State. Defendant counters with an assertion that it was unaware of the incident
until this motion was filed. Defendant also attached as exhibit A to the May
15, 2002 sur-reply affidavit of Assistant Attorney General William D. Lonergan,
the "Project Log Sheet" received from Claimant's employer on the day of the
accident. This document makes no mention of Claimant's accident. Defendant
goes on to argue that, as it was unaware of the incident, it had no opportunity
to investigate the accident.
Claimant asserts that, regardless of notice and opportunity to investigate at
the time, Defendant is not prejudiced as it can adequately investigate the
accident now. According to Claimant, the building and air conditioning unit are
still in substantially the same condition as on the date of the accident.
Defendant has apparently undertaken no investigation in connection with this
motion but argues that it would be significantly prejudiced by the lack of
notice and a previous investigation because "conditions which existed at the
time of the alleged incident have now significantly changed." (January 16, 2002
Lonergan affidavit, paragraph 11) This issue is somewhat troubling. Defendant
does not specify how conditions have changed or how such a change would prevent
a meaningful investigation at this time. Though Claimant did allege that a
patch of snow caused him to slip, I find that the removal of the catwalk and
Claimant's need to jump over the resulting unprotected vault are the significant
areas of concern. Presumably, the vault, catwalk, and air conditioning unit are
still available for inspection and witnesses to the incident, including
Claimant's supervisor Robert Bishop, are still available for interview.
Therefore, I find that Defendant would not be substantially prejudiced by
permitting the proposed claim to be filed.
With regard to merit, Claimant alleges simply that, while in the course of his
employment for one of Defendant's contractors and on Defendant's property, he
fell from a height due to Defendant's failure to provide adequate or appropriate
safety devices. Defendant argues that Claimant has failed to demonstrate merit
because Claimant has not set forth an adequate factual basis to establish a
violation of Labor Law section § 240. I disagree.
Generally, a proposed claim meets the appearance of merit standard if it passes
a two-fold test. It must not be patently groundless, frivolous, or legally
defective and, upon consideration of the entire record, there must be reasonable
cause to believe a valid cause of action exists (Matter of Santana v New York
State Thruway Auth., 92 Misc 2d 1). While the aforementioned standard on a
late filing application clearly places a heavier burden on a party who fails to
comply with the statutory requirements, it does not require a claimant to
overcome all objections, nor does it suggest that the Court should engage in the
kind of fact-finding that would ultimately be necessary to adjudicate the actual
merits of the case (Matter of Santana v New York State Thruway Auth.,
supra, at 11-12 ). I find that removing an air conditioning unit from the roof
of a building falls within the protections of Labor Law § 240 (see,
Perez v New York City Indus. Development Agency, 223 AD2d 628; Sprague v
Peckham Materials Corp., 240 AD2d 392). Claimant's allegations that he fell
into the unprotected vault in the course of such a task establishes that the
proposed claim has the appearance of merit.
Upon reviewing and balancing all of the factors enumerated in CCA §10(6),
I find that they weigh in favor of granting the relief requested.
Based upon the foregoing it is hereby:
ORDERED, that Claimant's motion for permission to file a late claim in
this matter is granted. Claimant is directed to file and serve a claim
reflecting the Court's amendment of the caption, but otherwise identical to the
proposed claim dated October 17, 2001, in support of this motion; and to do so
in conformance with the requirements of CCA §§ 10, 11, and 11-a within
sixty (60) days after this order is filed.