New York State Court of Claims

New York State Court of Claims

MEDINOSKY v. THE STATE OF NEW YORK, #2003-019-535, Claim No. NONE, Motion No. M-66291


Claimants' motion for leave to file a late claim alleging labor law causes of action arising injury resulting from rolling heavy steel structure down an earth embankment is 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:
LEVENE, GOULDIN & THOMPSON, LLPBY: Philip C. Johnson, Esq., of counsel
Defendant's attorney:
BY: Mlynarski & Cawley, P.C.Theodore J. Mlynarski, Jr., Esq., of counsel
Third-party defendant's attorney:

Signature date:
April 7, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) containing causes of action based upon common-law negligence and Labor Law 200, 240 (1) and 241 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Motion for Leave to File a Late Claim, Motion No. M-66291, dated January 6, 2002 [sic], and filed January 9, 2003.
  2. Affidavit of Michael W. Medinosky, in support of motion, sworn to December 30, 2002.
  3. Affidavit of Philip C. Johnson, Esq., in support of motion, sworn to January 6, 2003, with attached exhibit.
  4. Proposed Claim, dated December 20, 2002.
  5. Claimants' Memorandum of Law, in support of motion, undated.
  6. Affirmation of Theodore J. Mlynarski, Jr., Esq., in opposition to motion, dated February 27, 2003, and filed March 3, 2003.
  7. Affidavit of Daniel W. Ryan, in opposition to motion, sworn to February 27, 2003, with attached exhibits.
  8. Memorandum of Law in Opposition to Claimants' Late Filing Motion, dated February 27, 2003.
  9. Claimants' Supplemental Memorandum of Law, dated March 24, 2003.
On March 1, 2002 Claimant[1] 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 as follows:

[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 [6]).

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). 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 original).

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).[2]

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 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.[3] (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 23-1.23.

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 constructed.[4] 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.[5] Again, 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 case.

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 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. 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 favor.

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); and

In view of the foregoing, IT IS ORDERED that Claimants' motion for permission to file a late claim, Motion No. M-66291, is DENIED.

April 7, 2003
Binghamton, New York

Judge of the Court of Claims

The term "Claimant" will refer solely to Michael W. Medinosky inasmuch as the claim of Barbara A. Medinosky is derivative in nature.
Unreported decisions from the Court of Claims are available via the Internet at
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.
Subdivision (a) states:
Construction. Earth ramps and runways shall be constructed of suitable soil, gravel, stone or similar embankment material. Such material shall be placed in layers not exceeding three feet in depth and each such layer shall be properly compacted except where an earth ramp or runway consists of undisturbed material. Earth ramp and runway surfaces shall be maintained free from potholes, soft spots or excessive uneveness [sic].
Earth ramps and runways used by persons. Earth ramps and runways used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall be at least 48 inches in width. Such ramps and runways more than four feet above the adjacent ground, grade or equivalent level shall be provided with safety railings constructed and installed in compliance with this Part (rule). The total rise of any continuous ramp or runway used by persons with or without wheelbarrows, power buggies, hand carts or hand trucks shall not exceed 12 feet unless such rise is broken by a horizontal section at least four feet in length every 50 feet.