Claimant's application for permission to file a late claim relating to his alleged exposure to silica dust is granted.
|Claimant short name:||YACKLE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||MORRIS, CANTOR, LUKASIK, DOLCE &
BY: MARC C. PANEPINTO, ESQ.
|Defendant's attorney:||HON. ELIOT SPITZER
New York State Attorney General
BY: FREDERICK H. MCGOWN, III, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 10, 2003|
|Appellate results:||21 AD3d 1283|
|See also (multicaptioned case)|
The following papers, numbered 1 to 6, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed August 29, 2002;
2. Affirmation of Marc C. Panepinto, Esq., dated August 19, 2002;
3. Affidavit of Raymond Yackle, sworn to August 20, 2002, with attached exhibits;
4. Affirmation in Opposition of Frederick H. McGown, III, Esq., dated October 18, 2002;
5. Supplementary Affirmation of Marc C. Panepinto, Esq., dated November 6, 2002, with attached exhibits;
6. Reply Affirmation in Opposition of Frederick H. McGown, III, Esq., dated December 16, 2002.
Upon the foregoing papers, and upon oral argument from counsel in this matter, the motion is granted.
With this motion, Raymond Yackle seeks permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his motion papers, Mr. Yackle alleges that on June 11, 2001, he was diagnosed with silicosis, an occupational lung disorder which in some ways is similar to asbestosis. Since then, he has been permanently disabled from his work as a result of this disease.
Within his moving papers, Claimant explains that for 39 years he has worked in the construction industry, and for most of that time worked as a "pipe foreman." His activities in this position entailed cutting "concrete pipe, sewer pipe and concrete lined water line" (Yackle affidavit, paragraph 2). While engaged in these activities, Claimant was regularly exposed to and inhaled silica dust. During the course of his career, Mr. Yackle was involved in projects on State owned or operated lands. He alleges that over the past nine years and specifically in June of 2001, he worked for a contractor of the State of New York, The Oak Grove Construction Company. He alleges that on June 11, 2001, he was engaged in this particular capacity and performed work on the "construction of I-90 rehabilitation project of the New York State Thruway Section I-90 between the I-190 interchange and the New York State Route 400" (Claimant's affidavit, paragraph 1). He was, he further alleges, exposed to silica dust at this site without being offered a proper protective respiratory device.
Claimant concedes that his silicosis is the result of 39 years of working in and around silica dust and that only a portion of these exposures occurred on State owned property. He also concedes that at various times, including the State job identified above, he was offered a "paper mask" which was ostensibly intended to protect him from inhaling silica dust. He contends, however, that these paper masks were inadequate for their intended purposes and that he did not avail himself of their protection as they "would clog within minutes of use" (Claimant's affidavit, paragraph 6). Claimant asserts that Defendant is liable for his developing silicosis and the subsequent disability that this disease has caused. He alleges violations of Labor Law §§ 200 and 241(6).
In support of his motion, Claimant has attached the affidavit of pulmonologist J. Richard Tyner, M.D. Dr. Tyner, after examining Mr. Yackle and the results of various diagnostic tests to which he has been subjected, states that Mr. Yackle does indeed suffer from silicosis, and that "silicosis is an occupational illness which is caused by continued exposure to silica over a number of years ( Tyner affidavit, paragraph 5). Dr. Tyner goes on to explain that he is not able to determine if Claimant's exposure at any particular time caused his silicosis, but rather that the cause was the cumulative effect of breathing silica dust over a period of many years.
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 System Policemen's and Firemen's Retirement System, 55 NY2d 979).
As a threshold issue, Defendant opposes this application on the grounds that it is barred by the statute of limitations and, therefore, that this Court is without jurisdiction to grant the motion. With regard to the 6 factors identified above, Defendant disputes factors 1 (delay); 5 (substantial prejudice); and 6 (merit). Defendant does not oppose Claimant's application as it relates to factors 2, 3 and 4, these factors are, therefore, presumed to weigh in Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). I will deal with Defendant's objections in order.
First, Defendant asserts that this Court is without jurisdiction to grant the motion, as the underlying statute of limitations upon which such an action is based has already expired. In this regard, both parties agree that the statute of limitations governing claims related to the latent effects of exposure to toxic substances is CPLR § 214-c. This section provides that an action must be commenced within three years from "the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier."
Claimant asserts that this three year period commenced when he was diagnosed with silicosis in June of 2001. Defendant correctly asserts that the date of diagnosis is not the controlling date, but rather the significant date is the date that the Claimant knew or reasonably should have known that he was injured. The distinction that Defendant makes is that it is the onset of symptoms that triggers the three year statute and not the actual diagnosis of the disease. Defendant goes on to proffer that it is reasonable to assume that after 39 years as a cement cutter, Claimant's symptoms did not suddenly appear in June of 2001 when he was diagnosed with silicosis and that they must have been evident long before that time. Claimant's motion papers, however, only identify Claimant's diagnosis date in June of 2001, and do not indicate when he first became aware of the symptoms that accompany his illness. Claimant does assert that he continued to work in his profession until the diagnosis was made.
Defendant, of course, at this point has not had the opportunity to review Claimant's medical records and so cannot point to any specific evidence that Claimant's symptoms manifested themselves more than three years before this motion was filed. Defendant, therefore, merely proffers that it is reasonable to assume that such manifestations occurred. Though this argument appears quite reasonable and may, in fact, be accurate, this is not something that is readily apparent to a layperson. Support for such a contention must necessarily come from a medical expert (see e.g., Duffen v State of New York, 245 AD2d 653). This issue, therefore, while perhaps an appropriate basis for future motion practice, cannot be resolved in Defendant's favor based upon the information before me. It appears that the Claimant's application is not time-barred by CPLR § 214-c.
With regard to his excuse for the delay in filing, Claimant states that he was unaware that he could bring an action against the State of New York for his injuries. This, of course, is not a legally recognizable excuse for Claimant's delay, and this factor weighs in Defendant's favor.
The absence of an excuse for the delay is only one of the factors considered by the Court in reviewing a § 10(6) application, and does not necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, supra).
With regard to substantial prejudice, Defendant asserts that because of Claimant's delay, its insurance carrier has, at least to this point, refused to accept responsibility for the defense of the State in this action. Defendant offers no authority for its contention that this fact should affect the Court's consideration of the substantial prejudice factor. In Cajal v State of New York, (Ct Cl, May 9, 2001 [Motion No. M-62793], Marin, J., MacLaw #2001-016-035)(1) the Hon. Alan C. Marin determined that such a fact is not appropriately considered when determining this factor. I find therefore, that this factor weighs in Claimant's favor.
This brings us to merit, the final, and what is often considered the most important factor. Claimant's proposed claim asserts causes of action based upon Labor Law §§ 200 and 241(6). Defendant's opposition of this motion as it relates to Claimant's demonstration of merit, does not address whether or not adequate proof has been demonstrated to support a cause of action pursuant to either of these sections. While, I am constrained, thereby, from delving too deeply into Claimant's uncontroverted allegations concerning these two sections, I am compelled to address them to some extent nonetheless.
Labor Law § 200 is a codification of the common law duty of a land owner to provide and maintain a safe place to work. Generally, in order to establish liability under this section, proof is required that the land owner exercised supervisory control over the work which caused the injury (Comes v New York State Electric and Gas Corporation, 82 NY2d 876; Rapp v Zandri Constr. Corp., 165 AD2d 639). Claimant has failed to show, and in fact to even allege, that Defendant had any supervisory control over the work he was performing at the time of his injury. Claimant's only mention of control is in general terms and made by his attorney when discussing notice. Claimant's attorney stated: "[b]ased upon this being a State project, which upon information and belief, had State engineers and State employees on a daily basis overseeing the work, upon information and belief the State of New York and New York State Thruway Authority had actual notice of the Claimant's occupational injury and the causes thereof" (Panepinto August 19, 2002 Affirmation, paragraph 8).
This statement is insufficient for two reasons. First, it comes from Claimant's attorney, not someone with direct knowledge of what occurred. While "allegations in claimants' papers are normally deemed true for the purposes of a late claim motion, this rule benefits only the statements of an individual who has the knowledge or expertise required to support the cause of action pleaded" (Jolley v State of New York, 106 Misc 2d 550, 551 - 552). Second, even if true, the fact that Defendant had employees on site is not tantamount to control over the work which caused the injury. Due to this deficiency, Claimant's Labor Law § 200 cause of action is not meritorious.
Claimant also argues that the State is liable under Labor Law § 241(6). Defendant does not challenge this assertion. Unlike § 200, Labor Law §241(6), imposes a non-delegable duty upon owners and contractors and does not require an element of supervisory control for liability to attach. However, in order to establish a proper claim under this section, the claimant must cite specific regulations which set forth specific safety standards to be complied with, as opposed to more generic regulations which merely restate general safety standards. Claimant must also demonstrate that the violation was the proximate cause of his injury (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 505). Though not identified in his proposed claim, Claimant has alleged violations of specific regulations that would support an action based upon Labor Law § 241(6). Specifically, Claimant has identified 12 NYCRR 23-1.7(g) and 12 NYCRR 23-1.8(b). Defendant does not dispute that these sections set forth specific safety standards, that they are applicable in this matter, or that they were violated as Claimant alleges. For this reason, I find that, to the extent that he has otherwise demonstrated merit, Claimant has set forth the necessary elements of a cause of action pursuant to Labor Law § 241(6).
Defendant does argue, however, that Claimant has failed to demonstrate merit by failing to properly document, through acceptable medical testimony, that he has suffered injury as a result of the alleged violations. This question is also difficult. Claimant's expert does not specifically state that Claimant's disease was caused, or made worse, by his alleged exposure on one or any of the State projects. In fact, according to Dr. Tyner, the extent to which the silica dust Claimant encountered while working on the identified State projects contributed to his current condition can not be ascertained. What Dr. Tyner can ascertain is that Claimant has silicosis, that the disease is cumulative in nature, and that it developed over the course of Claimant's 39 year career as a result of exposure to silica dust.
Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous, or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ). Based upon this standard, I find that Claimant has demonstrated that the proposed claim has the appearance of merit.
Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh in favor of granting the relief requested.
Based upon the foregoing it is:
ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim provided in support of this motion, except that the claim to be filed shall not assert a cause of action based upon Labor Law § 200, and it shall specifically identify the regulations allegedly violated in support of the Labor Law § 241(6) cause of action and the locations and dates of such violations, as well as Claimant's duties on those dates, as these matters have been identified in Claimant's supplemental motion papers; and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this order is filed.
February 10, 2003
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims
1. These and other Court of Claims decisions may be found on the Court of Claims website at http://www.nyscourtofclaims.state.ny.us.