On March 1, 2002 Claimant
was working on a
project constructing a bridge from State Route 17 into the Village of Owego,
Tioga County, New York. The State is the owner of the bridge and hired
Fahs-Rolston Paving Corporation (hereinafter "Fahs-Rolston") as the general
contractor for the project. Fahs-Rolston hired Marathon Iron Works (hereinafter
"Marathon") as a subcontractor for certain steel work on the project. Claimant
was employed as a steelworker by Marathon at the time of this accident.
According to Claimant, his primary responsibility at the job site was to assist
in the assembly of caissons using pre-fabricated coiled steel. Claimant
estimates one assembled caisson measured 40 feet long and 30 inches in diameter
and weighed about 2000 pounds. After assembly the assembled caissons were
stored in a designated area approximately forty feet from their work area.
Claimant avers that on some occasions the assembled caissons were moved by crane
to the storage area and on other occasions the steelworkers would manually roll
them to the storage area. Claimant describes the storage area as being located
"downgrade from where the pieces were assembled..." and that the steelworkers
"pushed them downhill along an earthen embankment to the storage area."
(Claimant's Affidavit, ¶ 11). Claimant avers that on the date of this
accident one of the assembled caissons was ready to be moved to the storage area
but a crane was not available, so he and some "[c]o-workers began to manually
roll the steel frame down the earthen embankment to the storage area."
(Claimant's Affidavit, ¶ 13). Claimant describes the next series of events
[a]s it was being rolled [sic] the hill, my glove was snagged by a wire
which was holding the two steel coil sections together, and I was propelled up
and over the steel frame work as it continued to move downgrade. My body was
catapulted to the ground and unit [sic] then rolled over my left hand and
arm, and my head and shoulders became wedged between it and the ground.
(Claimant's Affidavit, ¶ 14). As a result of the foregoing, Claimant
suffered severe injuries to his left hand, together with injuries to his face,
neck and shoulder.
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 which is the comparable time period for bringing negligence actions
against a citizen of the state. (CPLR 214; CCA 10 ).
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.
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). 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 Court will address the factor of merit individually with
respect to each proposed cause of action, although the remaining 10 (6) factors
are discussed jointly.
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 [citations omitted]." (Miller v Wilmorite, Inc., 231 AD2d 843).
That having been said, however, it is well-settled that "[g]eneral supervisory
authority at the work site for the purpose of overseeing the progress of the
work and inspecting the work product has been found insufficient to establish a
cause of action under Labor Law § 200 [citations omitted]." (Riccio v
Shaker Pine, 262 AD2d 746, 748, lv dismissed 93 NY2d 1042). In other
words, 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). Moreover, it is equally accepted that:
[m]ere retention of contractual inspection privileges...does not amount to
control sufficient to impose liability, and that where the injury is due to the
method of work, Labor Law § 200 and common law negligence claims must be
dismissed in the absence of proof of the owner's actual control,
notwithstanding the existence of questions of fact regarding an owner's
contractual right of control [citations omitted].
(Brown v New York City Economic Dev. Corp., 234 AD2d 33; emphases in
Here, Claimant states employees of the Department of Transportation
(hereinafter "DOT") were present on the job site and, upon information and
belief, that a state inspector was at the job site daily to ensure the project
was conforming to specifications and proceeding safely. (Claimant's Affidavit,
¶ 17). Additionally, Claimant's counsel avers, upon information and
belief, and based upon his experience in litigating similar cases, that State
employees would have been on site on a daily basis ensuring all contractors were
adhering to project specifications and safety measures. (Affirmation of Philip
C. Johnson, Esq., ¶ 6).
Claimant conceded at oral argument that the State did not direct the methods of
Claimant's duties, but argues that the State's presumed retention of contractual
authority to stop unsafe practices is sufficient to create at least the
appearance of merit. It is well-settled that general conclusory allegations
regarding the State's control, at a State-owned project, of the construction
site are 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] general allegation that State inspectors were present at
the work site found insufficient), with few exceptions. (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 found
sufficient on late filing motion).
Here, Claimant has not offered any proof to establish that the State exercised
any supervision or control over Marathon's operation, namely the method
of moving the assembled caissons. Stated another way, there is absolutely no
proof indicating that any State employee instructed Claimant on how to
transport assembled caissons. As such, Claimant's reliance on Freitas v New
York City Tr. Auth., 249 AD2d 184, is misplaced since the factual
allegations of this Claim do not rise to the level of proof referenced in
Freitas. 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
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
(Gordon v Eastern Ry. Supply,
82 NY2d 555).
Claimant asserts that he has a valid 240 (1) cause of action arguing that
"[t]he proposed claim reflects that claimant was exposed to the risk of being
injured, due to an object falling from an elevated work area as a result
of the absence of an appropriate safety device such as a crane [citation
omitted]." (Claimant's Memorandum of Law, p 6; emphasis added). In opposition,
the State argues that 240 (1) is inapplicable because there has been "no fall
whatsoever, either of a workman or of an object." (State's Memorandum of Law, p
6). In support of its position, the State has submitted photographs of the
accident location, as well as an Affidavit from the State's project engineer.
With respect to the photographs, Claimant does not dispute that they accurately
represent the scene of the accident. To the naked eye, the topography appears
relatively level with what could, at most, be described as a slight slope. More
specifically, the State's engineer describes the slope as approximately six
degrees. (Affidavit of Daniel W. Ryan, ¶ 5). In this Court's view this
incident cannot be viewed as involving an elevated work site or, in any manner,
involving a gravity-related risk associated with Labor Law 240 (1). Moreover,
in Doty v Eastman Kodak Co., 229 AD2d 961, lv dismissed 89 NY2d
855, the Court distinguished between a "slide down an embankment" versus a slide
down a ramp or runway and found a slide down an embankment not to be the type of
hazard for which 240 (1) was designed to protect. Here, there is no allegation
that the accident area was a constructed ramp or runway, but rather the area is
merely a gentle slope in the land.
Consequently, the Court finds that the proposed cause of action based on Labor
Law 240 (1) does not appear meritorious.
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). Here, Claimant has pled the alleged violation of only one Industrial Code
provision, namely 12 NYCRR 23-1.23 entitled "Earth ramps and runways" which has
been deemed a concrete specification. (Demartino v CBS Auto Body &
Towing, 208 AD2d 886). As such, the Court will examine whether these
factual allegations, accepted as true, would fall within the purview of 12 NYCRR
The State argues that 12 NYCRR 23-1.23 is inapplicable because this accident
site was not an earth ramp or runway or, in the alternative, assuming its
applicability that none of the fours paragraphs in said provisions are
implicated by these allegations.
The Court agrees that these allegations do not support the premise that this
accident location can be construed as a ramp or a runway. Although not
specifically defined in Part 23, a ramp or a runway is referred to within other
provisions as providing a "means of access to working levels above or below
ground...." (12 NYCRR 23-1.7 [f]; Supensky v State of New York, 192 Misc
2d 233, 236). Here, the accident location can best be described as a plot of
ground, but under no reasonable interpretation did this location provide a means
of access to another working level above or below ground. As such, this Court
finds that this earth embankment does not equate to a ramp or a runway within
the purview of 12 NYCRR 23-1.23.
Parenthetically, however, even if the Court were to accept Claimant's argument
that this location is a ramp or runway, the Court finds Industrial Code 23-1.23
inapplicable on these facts. The Court will examine each of the four paragraphs
of 12 NYCRR 23-1.23. Subdivision (a)
addresses the manner and material with which earth ramps and runways are
There is no allegation here that
this "ramp or runway" was constructed with improper material or maintained in an
improper manner. As such, the Court finds that 12 NYCRR 23-1.23 (a) is
inapplicable to the facts at hand.
12 NYCRR 23-1.23 (b) states that "[e]arth ramps and runways shall have maximum
slopes of one in four (equivalent to 25 percent maximum grades)." Here, the
State has submitted an affidavit from the State engineer from this project who
avers that the slope at the accident location was not more than six degrees.
(Affidavit of Daniel W. Ryan, ¶ 5). Claimant has not disputed this
representation. Accordingly, the Court finds 12 NYCRR 23-1.23 (b) inapplicable
to these facts.
12 NYCRR 23-1.23 (c) sets forth requirements for the construction of an earth
ramp and runway to be used by motor trucks. Here, there is no allegation that a
motor truck was involved in this accident or that there was any violation of the
width and curbing regulations which comprise this subdivision. Accordingly, the
Court finds 12 NYCRR 23-1.23 (c) inapplicable to this case.
12 NYCRR 23-1.23 (d) sets forth requirements for the construction of an earth
ramp and runway to be used by persons.
assuming this accident location to be such a ramp or runway for purposes of this
discussion, this subdivision sets forth three specific regulations for the
construction of such ramps and runways. First, is the regulation that the ramp
and runway should be at least 48 inches in width. Second, is the requirement
that if the ramp and runway is "more than four feet above the adjacent ground"
then safety railings are required. Third, is the requirement that the total
rise of any ramp and runway should not exceed 12 feet unless the rise is broken
up by horizontal sections. There is absolutely no factual allegation by
Claimant that would implicate any of these requirements under subdivision (d).
Accordingly, the Court finds 12 NYCRR 23-1.23 (d) inapplicable to this
Accordingly, the Court finds that the proposed claim relative to Labor Law 241
(6) and 12 NYCRR 23-1.23 does not appear meritorious.
2. Remaining Factors
Claimant candidly admits that the failure to comply with CCA 10 and 11 was due
to his own mistake of not consulting an attorney until November 4, 2002, unaware
that there was a 90 day statutory period applicable to his claim. (Affidavit of
Michael W. Medinosky, ¶ 21). Despite Claimant's candor, ignorance of the
law has been deemed an unacceptable excuse. (Innis v State of New York,
92 AD2d 606, affd 60 NY2d 654). This factor weighs against
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. The State concedes that a
DOT inspector was informed of this accident on the date thereof and prepared a
contemporaneous report. (Exhibit B to Affidavit of Daniel W. Ryan). The State
attempts to discount this notice by asserting that the injuries were believed to
be minor such that no investigation was conducted. In this Court's view,
however, Claimant has established that the State received notice of the
essential facts of this accident, regardless of the degree of injury, and, as
such, could have conducted an investigation if it had so chosen. With respect
to the factor of prejudice, the State does not argue that the accident location
has changed or that any witnesses or documents are no longer available.
Consequently, this Court finds that these three factors weigh in Claimant's
The last factor is whether Claimant has any other available remedy. Here,
Claimant concedes that he will be filing suit against the general contractor in
Supreme Court. 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 that with respect to the proposed common-law
negligence, Labor Law 200, 240 (1), and 241 (6) causes of action that three 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);
In view of the foregoing, IT IS ORDERED that Claimants' motion for permission
to file a late claim, Motion No. M-66291, is DENIED.