New York State Court of Claims

New York State Court of Claims

DACUS v. THE STATE OF NEW YORK, #2003-019-511, Claim No. 106451, Motion Nos. M-65937, CM-66049


State's motion to dismiss claim is granted; Claimants' cross motion for leave to file a late claim is granted with respect to Labor Law 240 (1) and portions of the 241 (6) cause of action, but denied with respect to proposed common-law negligence, Labor Law 200, and a portion of the Labor Law 241 (6) causes of action.

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:
SHAPIRO & SHAPIROBY: Steven M. Zweig, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
GREENE, HERSHDORFER & SHARPEBY: Beth A. Brownson, Esq., of counsel
Third-party defendant's attorney:

Signature date:
January 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York moves for an order of dismissal pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimants oppose the motion and, in the alternative, cross-move for permission to file a late claim pursuant to 10 (6) based upon common-law negligence and Labor Law 200, 240 (1) and 241 (6).

The Court has considered the following papers in connection with these motions:
  1. Claim, filed August 1, 2002.
  2. Notice of Motion No. M-65937, dated October 18, 2002, and filed October 21, 2002.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated October 18, 2002, with attached exhibits.
  4. Notice of Cross-Motion No. CM-66049, dated November 13, 2002, and filed November 15, 2002.
  5. Affidavit of Steven M. Zweig, Esq., in support of cross-motion, sworn to November 13, 2002, with attached exhibits.
  6. Affidavit of Jerome Dacus, in support of cross-motion, sworn to November 13, 2002.
  7. Memorandum of Law, in support of cross-motion, dated November 13, 2002.
  8. Consent to Change Attorneys dated December 6, 2002 and filed December 17, 2002.
  9. Affidavit of Beth A. Brownson, Esq., in opposition to cross-motion, sworn to December 12, 2002, and unfiled.
  10. Memorandum of Law, in opposition to cross-motion, dated December 12, 2002.
  11. Affidavit of Dennis R. Wilson, in opposition to cross-motion, sworn to December 13, 2002, and unfiled.
  12. Affidavit of Paul Meany, in opposition to cross-motion, sworn to December 17, 2002, and unfiled.
  13. Letter from Beth A. Brownson, Esq. to Court, dated December 18, 2002, and received by the Court on December 19, 2002.
This claim arose occurred on May 3, 2002. The Claim alleges that Claimant Jerome Dacus was employed by Amstar Painting of Western New York (hereinafter "Amstar") which had entered into a contract with the State to sandblast and paint three State-owned bridges in Broome County, New York. On the date of this accident Claimant[1] was working on a bridge traversing Route 434 located in Binghamton, New York. This Claim describes in general terms that Claimant was injured when the scaffold upon which he was working moved or shifted while he was in the process of sandblasting. More specifically, Claimant explains in his motion papers that the scaffold was suspended by cables approximately 12 feet above a platform that was in turn approximately 30-40 feet above the water. (Affidavit of Jerome Dacus, ¶ 7). Claimant avers that he believes his co-worker, whom he is able to identify only as Rudy, "unlocked his side of the scaffold to move it."[2] (Affidavit of Jerome Dacus, ¶ 6). Claimant was wearing a safety harness that was attached to a safety line connected to an overhead cable. (Affidavit of Jerome Dacus, ¶ 8). Claimant then describes the following series of events:
[w]hen the scaffold began to move when my co-worker Rudy unlocked it and attempted to move it, I was caused to slip and grabbed out with my left hand onto a beam. I was holding the sandblaster in my right hand, and tried to maintain control of it, because I was worried it might fall and injure my co-worker because it was still on. The scaffold moved out from underneath me and I was worried that I would fall from a height. I continued to hold onto the beam with my left hand until the scaffolding shifted back underneath me, and I then fell and landed on my feet on the scaffolding.

(Affidavit of Jerome Dacus, ¶ 9; emphases added).

Claimant finished his work day without seeking medical treatment. Three days after the incident Claimant went to the local emergency room complaining of pain in his right shoulder (the side holding the sandblaster). Claimant states he "[d]id report the injury to my employer", but does not say when or to whom. (Affidavit of Jerome Dacus, ¶ 12). Claimant avers he has treated with Nitins Banwar, M.D., who has ordered an MRI, although no medical records are submitted herewith.

This Claim was filed with the Clerk of the Clerk on August 1, 2002 and personally served on the Attorney General's office on September 11, 2002. Claimant concedes no notice of intention was ever served.

I. State's Motion to Dismiss (M-65937)

It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). CCA 10 (3) requires that negligence claims be filed and served within ninety days of accrual, unless a notice of intention is served within ninety days of accrual, in which case the claim may be filed within two years of accrual. (CCA 10 [3] & 11). Here, the date of accrual is the date of the accident of May 3, 2002. As such, ninety days after accrual would have been August 3, 2002. It is undisputed that this Claim was timely filed on August 1, 2002, but that the Claim was not served until September 11, 2002 which is beyond the statutory period to do so. The Court is without discretion to waive these jurisdictional requisites. Claimants concede the untimely service of this Claim and have cross-moved for permission to file a late claim. Accordingly, the State's motion to dismiss will be granted and the Court will address Claimants' cross-motion.

II. Claimants' Cross-Motion for Permission to Late File (CM-66049)

A. Jurisdiction

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date of accrual.[3] (CPLR 214; CCA 10 [6]).

B. CCA 10 (6) factors

The factors that the 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. the claimant has any other available remedy.

(1). Merit

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), 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). In order to establish a meritorious claim, a claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11). Although the Court will address the merit of each of the proposed Labor Law causes of action separately, the Court first addresses the State's contention that there is no proof that this accident ever occurred other than Claimant's own allegations. It is well-settled that "[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." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The State has submitted an affidavit from the engineer-in-charge indicating he personally "had no notice" of this incident and that he "reviewed the records the State kept on this project" from the date of the incident and four months thereafter and did not locate any reference to any accident. (Affidavit of Dennis R. Wilson, ¶ ¶ 2 & 3). In this Court's view, Mr. Wilson's affidavit is insufficient to overcome the presumption since he does not aver that he was on the scene at the alleged date and time nor is there any proof that the unidentified documents should be accepted as the definitive record on such accidents. As such, for the purposes of this motion, the Court accepts the occurrence of this accident in the first instance, as well as Claimant's description thereof.

a). Merit of Labor Law 200/Negligence cause of action

Labor Law 200 is a codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work. With respect to owners, such as the State here, if the alleged defect is in the contractor's methods, rather than the premises, an owner who has not exercised any supervision or control over a contractor's operation cannot be liable for defects arising therefrom. (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). Here, Claimant simply avers that "I believe there was an inspector from the State of New York present on the job site that day." (Affidavit of Jerome Dacus, ¶ 4). Assuming, arguendo, Claimant's allegation to be true, there is still no showing or, for that matter, even an allegation by Claimant that any State representative supervised or controlled the manner in which the work was performed or any facet of the work site itself. In any event, general conclusory allegations regarding the State's control of the construction site have been found insufficient to support a motion to late file. (Beeman v The Olympic Regional Development Auth., et al., Ct Cl, July 18, 2000, Bell, J., Claim No. None, Motion No. M-61629 [UID No. 2000-007-040] conclusory contention regarding extent of defendant's control insufficient on motion to late file; Floyd v State of New York, Ct Cl., December 12, 2000, O'Rourke, J., Claim No. 102147, Motion No. M-62203, Cross-Motion No. CM-62302 [UID No. 2000-017-608] claimant's failure to even attempt to argue that the defendant had any notice of the alleged defect in the scaffold or of the failure to provide him with required safety equipment, notwithstanding his general allegation that State inspectors were present at the work site, found insufficient; compare Biggs v State of New York, et al., June 5, 2001, Fitzpatrick, J., Claim No. None, Motion No. M-62319 [UID No. 2001-018-088] where specific allegation of daily presence on job site with supervision and control that was not denied by the State was sufficient on late filing motion).[4] Accordingly, this Court finds that the proposed claim does not set forth a meritorious cause of action based upon common-law negligence and Labor Law 200.

b). Merit of Labor Law 240 (1) proposed cause of action

It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]." (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491, rearg denied 87 NY2d 969). At trial a claimant must show that Labor Law 240 (1) was violated and that the violation was a proximate cause of the resulting injuries.[5] (Gordon v Eastern Ry. Supply, 82 NY2d 555). Claimant alleges he has established that his proposed claim appears meritorious based upon his own description of the accident and applicable case law. First, with respect to the lack of proper protection, Claimant's reply memorandum clarifies that the focus of this 240 (1) cause of action is "the improper operation of the suspended scaffold." (Claimant's Reply Memorandum of Law, pp 1, 3 & 4). More specifically, counsel argues that "Mr. Dacus does not claim that there was a mechanical defect in the scaffold, but rather that it was operated improperly." (Claimant's Reply Memorandum of Law, p 4). With respect to the actual occurrence of the accident, Claimant avers that his own fear of falling and of the equipment falling and hurting a co-worker caused him to hold himself up and try to hold onto the equipment instead of letting it drop. By way of analogy, Claimant relies on Matter of Lockwood v State of New York, 267 AD2d 832. The facts of Lockwood also included a late filing application involving a worker on a scaffold. In Lockwood a jackhammer fell and the worker grabbed its air hose to prevent it from falling resulting in his own neck and shoulder injuries. The Third Department found the appearance of merit because the key focus of the case was the "[i]njury causing event - namely, claimant's attempt to stop the jackhammer from falling by grabbing its air hose." (Lockwood, 267 AD2d 832).

In opposition, the State argues that Claimant has failed to establish his Labor Law 240 (1) cause of action appears meritorious because of a lack of underlying documentation, as well as existing case law. First, the State points to the lack of any medical documentation or workers compensation reports confirming the existence of any injury, as well as the fact that Claimant only refers to a pending, rather than a completed, MRI. The State relies upon Olsen v State of New York, 296 AD2d 710, which involved a worker who was injured while in the process of drilling when a drill bit broke causing the worker to lose his balance. The worker in Olsen also had a fear of falling causing him to hold his harness with one hand and the drill with the other. The Third Department concluded that no questions of fact existed because the State's medical expert found as a matter of law that the worker's arm injury was not caused by his short fall or in any way related to the failure to provide any protective device to shield the worker from harm directly flowing from the force of gravity to an object or person. (Olsen, 296 AD2d at 711).

With respect to the State's arguments relative to a lack of supporting medical documentation, the Court notes that there is no injury threshold to meet in labor law cases, such that even a minor injury in connection with a labor law violation is sufficient to sustain a cause of action. Further, if the State makes this point to cast further doubt on whether this accident ever happened the Court has already discounted that argument. (supra at p 5). The Court finds the lack of medicals at this early stage is not fatal to Claimant's application.

Turning to the cases relied upon by the parties, the Court finds the difference between Olsen and Lockwood lies in the different procedural status of the cases, namely a late filing application compared to a summary judgment motion. In sum, while the Court agrees that there may well be legal issues and arguments that the circumstances surrounding this matter do not fall within the purview of Labor Law 240 (1), in order to make such a determination the Court would have to engage in fact-finding not yet appropriate on this limited record and not appropriate to a 10 (6) motion. (Atkinson v State of New York, Ct Cl, November 12, 1999, Bell, J., Claim No. None, Motion No. M-60362; Santana, 92 Misc 2d at 11-12). Rather, on a late filing application this Court need only insure that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. Consequently, although the issue is a close one, this Court finds that for the purpose of this motion, the proposed claim has the appearance of merit relative to the Labor Law 240 (1) cause of action.

c). Merit of proposed Labor Law 241 (6) cause of action

It is well-settled that Labor Law 241 (6) imposes a non-delegable duty on an owner of property to comply with concrete specifications set forth in the Industrial Code. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In order to make out a prima facie cause of action under Labor Law section 241 (6), a claimant must allege that the State violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct, as opposed to a general reiteration of common law principles. (Ross, 81 NY2d at 504-505). Violation of the safety regulation must also be shown to be a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959, 960).

Neither party was able to locate any prior case law directly addressing the three provisions of the Industrial Code cited by Claimant, namely 12 NYCRR 23-1.4 (17); 12 NYCRR 23-5.8 (c);[6] and 12 NYCRR 23-5.8 (c) (2) nor has the Court's own research revealed any such cases.[7] A review of 12 NYCRR 23-1.4 (17) reveals that it merely contains the definition of the term "designated person", without any "specific, positive commands" contained therein. (Allen v Cloutier Constr. Corp., 44 NY2d 290, 297, rearg denied 45 NY2d 776). As such, 12 NYCRR 23-1.4 (17) is not specific enough to support a Labor Law 241 (6) cause of action. However, in this Court's view, 12 NYCRR 23-5.8 (c) (1) and (2) are sufficiently specific to support a Labor Law 241 (6) cause of action, thus leading to the question whether the factual allegations, accepted as true, would fall within their purview. While the Court notes that there are some factual details lacking, such as the amount the scaffold moved, the Court finds that to require such exactness in the context of a late filing motion would present an insurmountable hurdle to any litigant relying upon 12 NYCRR 23-5.8 (c) (2). Accordingly, although the issue is again a close one, in view of the minimal burden applicable on late filing motions the Court finds that the proposed claim relative to Labor Law 241 (6) appears meritorious with respect to 12 NYCRR 23-5.8 (c) (1) and (c) (2), but not in connection with 12 NYCRR 23-1.4 (17).

2. Remaining Factors

Claimant candidly admits that the failure to comply with CCA 10 and 11 was due to law office error. Despite counsel's candor, law office failure is not a reasonable excuse for delay. (Nyberg v State of New York, 154 Misc 2d 199). Additionally, Claimant's failure to contact an attorney until the 88th day after accrual, presumably due to ignorance of the law, is likewise an unacceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant presents a creative, albeit ultimately unsuccessful argument, namely that the actual knowledge and investigation into this accident of and by Claimant's employer, Amstar, and its workers' compensation carrier within the statutory period should be imputed to the State, because the State will likely tender the defense of this case to Amstar's insurance carrier. In fact, since the filing of this motion the defense of this matter has been so transferred.[8] Nevertheless, Claimant has offered no authority from which this Court could conclude that notice to and an investigation by a third party should or can be charged to the State within the meaning of CCA 10 (6).[9] Additionally, the issue of insurance has been found to be irrelevant to the question of prejudice in a late filing application. (Floyd v State of New York, Ct Ct, December 12, 2000, O'Rourke, J., Claim No. 102147, Motion No. M-62203, Cross-Motion No. CM-62302 [UID No. 2000-017-608]). That having been said, although there may well be some prejudice to the State were this motion granted, there is no showing that the prejudice would be substantial. Consequently, this Court finds that the factors of notice and opportunity to investigate weigh against Claimant, while the factor of substantial prejudice weighs in his favor.

The last factor is whether Claimant has any other available remedy. Here, Claimant has applied for workers' compensation. Generally, workers' compensation benefits are viewed as only a partial remedy since there is no pain and suffering component to the award. (Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915). Nevertheless, inasmuch as CCA 10 (6) refers only to the presence of "any other available remedy" and does not specify that it be a total remedy, the Court finds that this factor weighs against Claimant.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds as follows:
(1) with respect to the proposed common-law negligence and Labor Law 200 cause of action, that five of the six factors, including the all-important factor of merit, weigh against Claimants' motion for permission to file a late claim pursuant to CCA 10 (6); and

(2) with respect to the proposed Labor Law 240 (1) cause of action, that four of the six factors, including the all-important factor of merit, weigh in favor of Claimants' motion for permission to file a late claim pursuant to CCA 10 (6); and

(3) with respect to the proposed Labor Law 241 (6) cause of action based upon 12 NYCRR 23-1.4 (17), that five of the six factors, including the all-important factor of merit, weigh against Claimants' motion for permission to file a late claim pursuant to CCA 10 (6); and
(4) with respect to the proposed Labor Law 241 (6) cause of action based upon 12 NYCRR 5.8 (c) (1) and (c) (2), that five of the six factors, including the all-important factor of merit, weigh in favor of Claimants' motion for permission to file a late claim pursuant to CCA 10 (6).

In view of the foregoing, IT IS ORDERED that the State's motion to dismiss, Motion No. M-65937, is GRANTED, and

IT IS FURTHER ORDERED that Claimants' cross-motion for permission to late file, Motion No. CM-66049, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The proposed claim should be revised to omit the common-law Labor Law 200/negligence cause of action and Labor Law 241 (6) cause of action based upon 12 NYCRR 1.4 (17). The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA 10, 11 and 11-a.

January 29, 2003
Binghamton, New York

Judge of the Court of Claims

[1]The term "Claimant" will refer solely to Jerome Dacus inasmuch as the claim of Bernistine Dacus is derivative in nature.
[2]Claimant avers that Rudy witnessed the accident, but that he does not know his last name.
[3]The Court will treat the pre-existing, though untimely and now dismissed, claim as the proposed claim relative to this motion. (Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc 2d 492, 495 n 2).

[4]Unreported decisions from the Court of Claims are available via the Internet at

[5]Labor Law 240 (1) states, in pertinent part, that all contractors and owners:

[s]hall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
[6]The Court will proceed on the presumption that Claimant relies here on subdivision (c) (1).

[7]The provisions relied upon by Claimant are as follows:

12 NYCRR 23-1.4 (17) defines "designated person" as "[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty."

12 NYCRR 23-5.8 (c) (1) states "[t]he installation or horizontal change in position of every suspended scaffold shall be in charge of and under the direct supervision of a designated person."

12 NYCRR 23-5.8 (c) (2) states:
[t]he horizontal displacement of any suspended scaffold platform in a direction perpendicular to the face of a building or other structure by means of an applied horizontal force shall not exceed one-tenth of the vertical distance from the elevation of the scaffold platform to its point of suspension. Any person who applies such horizontal force to a scaffold platform while he is located on any portion of the building or other structure at a point more than 10 feet above the ground, grade or equivalent surface shall be provided with and shall use an approved safety belt with a lifeline in compliance with this Part (rule).
[8]A completed Consent to Change Attorney form was submitted to chambers and has been sent to the Clerk of the Court for filing simultaneously with this Decision & Order.
[9]The notice requirement under CCA 10 (6) is not notice of possible litigation but rather notice of the essential facts constituting the claim. (Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013, 1015).