New York State Court of Claims

New York State Court of Claims

ROZA v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2002-031-062, , Motion No. M-65566


Synopsis


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

Case Information

UID:
2002-031-062
Claimant(s):
JAMES J. ROZA AND KATHERINE ROZA
Claimant short name:
ROZA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-65566
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
MORRIS, CANTOR, LUKASIK, DOLCE & PANEPINTOBY: MARK H. CANTOR, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HURWITZ & FINE, P.C.AUDREY A. BARR, ESQ.
Third-party defendant's attorney:

Signature date:
November 27, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 7, were read on motion by Claimants for permission to file a late claim:
1. Claimants' Notice of Motion, filed July 24, 2002;
2. Affirmation of Mark H. Cantor, Esq., affirmed July 19, 2002;
3. Affidavit of James J. Roza, sworn to July 15, 2002, with attached exhibit;
4. Affirmation of Audrey A. Barr, Esq., affirmed September 16, 2002, with attached exhibits;
5. Affidavit of Maynard Hagen, sworn to September 13, 2002;
6. Reply Affirmation of Mark H. Cantor, Esq., affirmed October 3, 2002;
7. Affidavit of Thomas Scime, sworn to October 10, 2002. This is the motion of James J. Roza and Katherine Roza for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the"CCA"). Claimant's proposed cause of action stems from a September 20, 2000 incident which occurred at a construction project on the Robert Moses Parkway (the "Parkway") at, or near, the Lewiston Exit. At the time, Mr. Roza was acting in the course of his employment for Eastwood Industries, a contractor for the State of New York. Mrs. Roza's claim is derivative in nature and all references to "Claimant" refer to James J. Roza unless otherwise specified.

In the proposed claim, Mr. Roza asserts a violation of Labor Law § 241(6) based upon a violation of 12 NYCRR 23-1.7(e) (tripping hazards). Claimant alleges that the project on which he was working involved removing cement light stands that lined the Parkway. Claimant's employer used a machine called a "hobnocker" to break up these cement light stands. Apparently, the use of this machine caused cement debris to be "scattered about in a wide area" (Claimant's affidavit, paragraph 3). Claimant's duties at the time of his accident were to pick up the debris that had been scattered by the hobnocker. According to Claimant, while collecting debris in a grassy area, he tripped over a piece of this scattered cement and sustained injuries.

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, imply 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. This, of course, is not a legally recognizable excuse for Claimants' delay (Griffin v John Jay Coll., 266 AD2d 16). This factor, therefore, tends to weigh in favor of Defendant.

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 did not report the incident to either his employer or Defendant. Defendant's counsel also made it clear at oral argument that the construction project is complete and that an investigation of the accident site at this time would be pointless. Defendant argues that, for these reasons, it has been significantly prejudiced by the Claimant's failure to file a timely claim. Claimants do not address these factors. Instead, they address only merit, asserting that this is the most significant and, therefore, the controlling factor for the court to consider. I disagree with Claimant's position. While it is certainly true that a late claim motion may be denied when it lacks merit, regardless of how the other factors break down, this does not mean that a late claim motion which presents a meritorious claim will be granted without further inquiry into the reason for the delay, other available remedies and notice, opportunity to investigate, and prejudice.

I find that the nature of the incident and the change in the construction area makes 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, 145 AD2d 915; Gatti v State of New York, 90 AD2d 840). These factors weigh in Defendant's favor.

While the factor relating to alternative remedies was also not addressed by Claimant, 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, supra). This factor, too, weighs in Defendant's favor.

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. 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 § 241(6) (Perry v City of Syracuse Indus. Dev. Agency, 283 AD2d 1017; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494) . The provisions of Subdivision (e) of 12 NYCRR 23-1.7, which is entitled "Protection from general hazards" read 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.
Claimant alleges that he sustained his injury in a "grassy area" near the Parkway while he was cleaning up debris. Courts have consistently held, however, that this regulation does not apply to accidents which occur in open construction areas (see e.g. Perillo v Pleasant View Assoc., 292 AD2d 773; Way v State of New York, Ct Cl, March 13, 2001 [Claim No. 97106], Lebous, J., UID # 2001-019-514). Claimant has, therefore, failed to demonstrate a violation of an underlying regulation which would support a cause of action under Labor Law § 241(6). For this reason I find that the proposed claim lacks merit.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they preclude granting the relief requested.

Based upon the foregoing it is:

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

November 27, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims