New York State Court of Claims

New York State Court of Claims

TABERSKI v. THE STATE OF NEW YORK, #2003-028-555, Claim No. NONE, Motion No. M-66196


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:
THE ROTHSCHILD LAW FIRM P.C.BY: Martin J. Rothschild, Esq.
Defendant's attorney:
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers were read on Claimant's application pursuant to Court of

Claims Act §10(6) for permission to late file a Claim:

  1. Notice of Motion and Supporting Affirmation of Martin Rothschild, Esq. (Rothschild Affirmation) with annexed Exhibits A-B; and Supporting Affidavit of Rebecca Taberski (Taberski Affidavit), filed December 20, 2002;
  1. Reply Affirmation of Martin J. Rothschild, Esq., filed March 21, 2003
(Rothschild Reply); and

  1. Movant's Memorandum of Law
Rebecca Taberski (Movant) and her husband, derivatively, seek the Court's permission to late file a claim against the Defendant alleging violations of Labor Law §§ 200, 240 and § 241 (6). Movant alleges that on June 19, 2002 she was employed by Green Island Construction and working on a reconstruction/repaving project of State Route 56 in Norfolk, New York. Movant alleges that a trench was dug as part of the project and that the trench undercut a portion of the roadway surface, creating an asphalt ledge or platform. Movant described the trench as being approximately 4-5 feet deep and extending 2 feet beneath the roadway. Movant asserts she was directed to work on the ledge in order to position a sewer grate onto the sewer inlet box, which was located in the trench. Movant states that as she reached to move the grate into place, the asphalt collapsed causing her to fall into the trench and injure herself. Defendant opposes the application.

As a threshold issue, the Court must determine whether Movant's application for permission to late file her claim was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR. The failure to file such application within the prescribed time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607 [emphasis omitted]). The causes of action presented herein are governed by the three year statute of limitations and as such, the instant application is timely made.

It is well-settled that the factors a 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) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

Movant offers as her excuse for not timely filing her claim, my belief that " my injuries would improve, and that I would be able to return to work rather quickly" (Taberski Affidavit ¶ 14). When that did not materialize, she retained counsel (id.). Defendant argues that this is not a valid excuse, noting Movant timely sought Workers' Compensation benefits (Dillon Affirmation, ¶ 5). The Court views Movant's actions here as excusable. Candidly, in a day where many believe our society has become too litigious, Movant represents that breath of fresh air of an individual not looking to sue first and ask questions later. Accordingly, this factor weighs in Movant's favor.

The factors of notice, opportunity to investigate and prejudice can be viewed together. Defendant acknowledges that it "was generally aware of some of the underlying facts..." (Dillon Affirmation ¶ 6). Defendant does not identify the source of its knowledge other than to say DOT knew that Movant filed a report with her employer (id.) Defendant does not address Movant's assertion that she met with the Defendant's engineer in charge approximately one week after the accident and discussed "what had happened with the roadway collapse" (Taberski Affidavit ¶ 12). Similarly unanswered are Movant's assertions that State inspectors were on site before the collapse and inspected the site after the collapse (id. at ¶ 13). Taken together, the Court cannot conclude that Defendant lacked notice of the essential facts or that Defendant has been precluded from a meaningful opportunity to investigate the allegations (see Carmen v State of New York, 49 AD2d 965, 966 [accident report, Workmen's Compensation records gave State abundant notice]). As for the Defendant's dispute with Green Island's insurance carrier regarding coverage for this accident, on this limited record, it cannot be placed at Movant's feet. The Court finds these factors weigh in favor of the instant application.

Often considered the most decisive component in the algorithm to determine a motion under Court of Claims Act § 10 (6) is whether the proposed claim appears to be meritorious, 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). Claimant must cross a "low threshold" (Bernard v State of New York, Ct Cl, Bell, J., August 4, 2000, UID#2000-007-043, Claim No. NONE, Motion No. M-61948 ) to establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra at 11). Claimant need not establish a prima facie case at this point, but rather the appearance of merit (see e.g. Jackson v State of New York, Claim No. NONE, M-64481, Midey, J., February 19, 2002, UID#2002-009-007). Generally, in reviewing the allegations in the proposed claim any "[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 [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Defendant raises a number of objections to the merit of the proposed claim.

Defendant posits that an expert affidavit regarding highway design and maintenance negligence is necessary on the instant application (Dillon Affirmation ¶ 10). Movant disagrees, arguing that such a position misapprehends the nature of the proposed Claim (Rothschild Reply ¶ 7). While this Court embraces the necessity of an expert affidavit in certain situations (see Aronson v State of New York, Ct Cl, Sise, J., December 27, 2002, Claim No. NONE, Motion No. M-65339 , UID#2002-028-075 [highway design]) the Court agrees with the Movant and finds that the facts of this proposed Claim do not require an expert affidavit to establish merit (see McCann v State of New York, Ct Cl, Sise, J., December 20, 2002, Claim No. None, Motion No. M-65810, UID#2002-028-069).[2]

Labor Law § 241(6) imposes upon contractors and owners, regardless of supervisory control, the duty to provide reasonable and adequate protection and safety to workers performing construction, excavation or demolition duties. In order to establish a proper claim under this section, the claimant must cite specific regulations setting forth specific safety standards to be complied with, as opposed to those regulations which merely restate general safety standards (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, at 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 ). Here, Movant has alleged violations of Industrial Code sections 12 NYCRR §§ 23-1.7, 1.15 - 1.17, 1.22, 1.32, 1.33, 4.1-4.3, 5.1 and 5.2. Defendant does not take issue with the cited sections as being either a general command or factually inapplicable to the case at bar.

Industrial Code §§23-1.7, 23-1.16, and 23-5.1 arguably contain several subsections which have specifications sufficient to sustain a cause of action under Labor Law Section 241(6) (see Biggs v State of New York, New York State Thruway Authority, and New York State Canal Corporation, Ct Cl, Fitzpatrick, J., June 5, 2001, Claim No. NONE, Motion No. M-62319, UID #2001-018-088). §23-1.7(b) (i) provides that "[e]very hazardous opening into which a person may step or fall shall be guarded" §23-1.7(b)(iii) requires that employees who must work close to the edge of such an opening "shall be protected as follows...(c) [a]n approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage." The Court finds such regulation adequate for the narrow purposes of the current motion to establish the merit of the section 241(6) claim.[3]

Labor Law § 240 (1) was enacted "in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites ... for workers laboring under unique gravity-related hazards" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491; Narducci v Manhasset Bay Assocs., 96 NY2d 259) and does "not encompass any and all perils that may be connected in some tangential way with the effects of gravity " (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 916, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Absolute liability under Labor Law § 240 (1) may be imposed only upon a showing that an injured worker fell from an elevated work surface or was struck by an object falling from an elevated work surface (see Staples v Town of Amherst, 146 AD2d 292, 293). In determining whether the statute applies, the question is whether there is "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Notwithstanding the Fourth Department's holding in Spears v State of New York, 266 AD2d 898 that "[b]ecause a highway at grade is not a building or structure within the meaning of section 240(1), that section imposes no duty upon the owner of a highway under construction or repair" (Spears v State of New York, 266 AD2d at 898-899 [citations omitted]) and Defendant's argument that Movant has not established that the roadway surface was an elevated structure (Dillon Affirmation ¶ 11), the uncontroverted facts as described by Movant ostensibly create a "falling worker" situation envisioned by the statute (see e.g. Sikorski v Burroughs Drive Apts., Inc., __AD2d__, 2003 N.Y. App. Div. LEXIS 6931 [4th Dept., June 13, 2003]). At this juncture, the Court can not conclude the proposed claim lacks the appearance of merit.

Labor Law § 200 is a codification of the common law duty of a landowner to provide and maintain a safe place to work. Generally, in order to establish liability under this section, proof is required that the landowner exercised supervisory control over the work which caused the injury (Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Rapp v Zandri Constr. Corp., 165 AD2d 639). Although Movant has made the barest of allegations in her claim that the State exercised supervision or control over the work involved, for purposes of this motion those allegations alleging a violation of Labor Law § 200 do establish the appearance of merit for this cause of action (but see Medinosky v State of New York, Ct Cl, Lebous, J., April 7, 2003, Claim No. NONE, Motion No. M-66291, UID #2003-019-535) .

Inasmuch as the Court has found an appearance of merit to Movant's direct causes of action, it necessarily follows, that the derivative claim on behalf of Movant's spouse, likewise has the appearance of merit.

Accordingly, the Court is persuaded that Movant has proposed meritorious claims for violation of the Labor Law §§ 200, 240 and 241(6) and as such, this factor weighs in favor of the application.

Turning to the final factor of another available remedy, it appears that Movant has pursued her Workers' Compensation remedy (see Rothschild Affirmation, Exhibit B [C-2 form]) which causes that factor to weigh against Movant (see Biggs v State of New York, supra, Claim No. NONE, Motion No. M-62319, UID #2001-018-088).

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movant's motion for permission to file a late claim.
Accordingly, Movant's application for permission to late file a claim is GRANTED and Movant is directed to file and serve a claim identical to the proposed claim, annexed as Exhibit A to the moving papers, omitting any reference to §23-1.33, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

July 10, 2003
Albany, New York

Judge of the Court of Claims

[1] Although Defendant makes reference to an annexed Exhibit A, there was no exhibit submitted with the opposition papers.
[2] In evaluating the merit of the proposed claim, the Court notes that the accident can be viewed as either a scaffold collapse or an excavation collapse, resulting in the apparently conflicting sections relied upon by the movant.
[3] It is not necessary for the limited purposes of this motion to address the other regulations Movant contends were violated (see Ortlieb v State of New York, Ct Cl, Bell, J., UID#2001-007-143, Claim No. NONE, Motion No. M-64342). However, the Court does note that §23-1.33 does not apply to workers on a construction site