New York State Court of Claims

New York State Court of Claims

FINKBEINER v. THE STATE OF NEW YORK, #2003-031-031, , Motion No. M-65081


Late claim motion alleging violation of Labor Law § 241(6) 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:
Defendant's attorney:
New York State Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 10, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed April 17, 2002;
2. Affirmation of Marc C. Panepinto, Esq., dated March 20, 2002, with attached exhibit;
3. Affidavit of Edward R. Finkbeiner, sworn to April 11, 2001 (sic);
4. Affirmation of Ralph Cessario, Esq., dated August 21, 2002, with attached exhibits;
5. Affidavit of Kim Silvestro, sworn to August 20, 2002;
6. Defendant's Memorandum of Law, dated August 21, 2002;
7. Supplemental Affidavit of Kim Silvestro, sworn to August 30, 2002;
8. Affidavit of Norm Wagner, sworn to January 30, 2003;
9. Reply Affirmation of Marc C. Panepinto, Esq., dated March 16, 2003;
10. April 1, 2003 correspondence of Marc C. Panepinto, Esq. This is the motion of Edward R. Finkbeiner for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his proposed claim, Mr. Finkbeiner alleges that he was injured on March 13, 2001, while employed by A & L Construction, a contractor of the State. At the time of the incident, Claimant was working on a concrete sewer line which was located in a field near Broadway Street in the city of Buffalo. Claimant alleges that he tripped over debris in his work area; this debris included a banding iron and some 2 x 4's. Claimant asserts a cause of action under Labor Law § 241(6) based upon a violation of Regulation 12 NYCRR 23-1.7(e) (tripping hazards).

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 Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant, who only recently retained counsel for this matter, alleges that he did not file a claim earlier because, prior to meeting with counsel on October 14, 2001, he was not aware of his right to commence an action in the Court of Claims. I am quite troubled, however, by a set of facts brought to the Court's attention by Defendant. It appears that, in February of 2001, the month before Claimant's alleged injury in this matter, Claimant met with his attorney regarding preparing a late claim application for a different incident that had occurred in 1999. It seems to me quite evident that Claimant was aware, in February of 2001, that he could maintain an action against the State. Even taken at his word, however, Claimant's lack of knowledge regarding his right to commence an action against the State is not a legally recognizable excuse for Claimant's delay. This factor, therefore, weighs in favor of Defendant.

While the factor relating to alternative remedies was not addressed by Claimant, I note that the right to receive Workers' Compensation benefits can serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though it may be only a partial remedy (Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915). This factor, too, weighs in Defendant's favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant asserts that these factors weigh in his favor because he was working on a State project at the time of the incident, and because he filed a Workers' Compensation claim shortly after the incident. Claimant assumes that the same insurance carrier that defended the State in the Workers' Compensation matter will defend the State in this matter and that therefore there is no prejudice to the State.

The Defendant, however, argues that it had no notice of the incident until this motion was filed more than one year after the incident occurred. At that point, the construction project had been completed and Defendant, therefore, has been denied any meaningful opportunity to investigate the incident. For this reason, the State asserts that its defense of this matter has been substantially prejudiced by Claimant's delay. Defendant does admit that Claimant filed an Employee Injury Report dated June 25, 2001. In this report, however, Claimant failed to set forth any fact that would put Defendant on notice of a potential claim, or even that Claimant had tripped on debris. In fact, Claimant indicated at that time that he "got stuck in the mud" and "heard a pop in [his] right knee, while trying to free [himself]." Claimant argues that, with regard to merit, this inconsistency, at most, creates an issue of fact to be resolved later. I find, however, that this mischaracterization of the accident prejudiced Defendant's ability to conduct a timely and meaningful investigation of the incident. I find that this, combined with the nature of the incident and the change in the construction area, makes investigation at this date an impossibility for Defendant and substantially prejudices Defendant's ability to defend this action. (Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915, supra; Gatti v State of New York, 90 AD2d 840).

The final factor to be considered is merit. To have a valid claim under § 241(6), Claimant must allege a specific violation of the regulations of the Commissioner of Labor and he must demonstrate that the violation was the proximate cause of his injury. The proposed claim alleges that Defendant failed to take proper precautions to keep the area in which Claimant was working free of debris and obstructions in violation of Subdivision (e) of 12 NYCRR 23-1.7. Claimant's counsel correctly points out that this regulatory provision sets forth a specific standard of conduct imposing a nondelegable duty upon a property owner or general contractor which will support an action under Labor Law § 241(6) (Tucker v Edgewater Constr. Co., 281 AD2d 865, 866; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Subdivision (e) of 12 NYCRR 23-1.7, which is entitled "Protection from general hazards" reads as follows:
(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.
Claimant alleges that he sustained his injury while working in a field near Broadway Street in the City of Buffalo. Courts have consistently held, however, that this regulation does not apply to accidents which occur in open construction areas (see e.g. Perillo v Pleasant View Assoc., 292 AD2d 773; Way v State of New York, Ct Cl, March 13, 2001 [Claim No. 97106], Lebous, J., UID # 2001-019-514). Claimant's reliance on McAndrew v Tennesee Gas Pipeline Co. (216 AD2d 876) as a counterpoint to this line of cases is misplaced. On its face McAndrew, which was decided in 1995, seems to support Claimant's contention that this regulation does apply in this case. However, the issue of what constitutes a work area was not addressed by the McAndrew court. Rather the issue in that matter was whether § 23-1.7(e)(2) was a specific or general requirement. To the extent that one could argue that McAndrew does define a work area within the statutory parameters, it is superceded by the Appellate Division Fourth Department's 2002 decision in the Perillo case cited above (see also Scofield v Trustees of Union College, 288 AD2d 807). Claimant has, therefore, failed to demonstrate a violation of an underlying regulation which would support a cause of action under Labor Law § 241(6). For this reason, I find that the proposed claim lacks merit. I should note that, even had § 23-1.7(e)(2) been applicable and the claim meritorious, I find that the other factors, especially the significant prejudice to the Defendant, would require that the claim be denied nonetheless.

Upon reviewing and balancing all of the factors enumerated in the CCA § 10(6), I find that each factor weighs in Defendant's favor.

Based upon the foregoing it is:

ORDERED, that Claimant's motion for permission to file a late Claim is denied.

June 26, 2003
Rochester, New York

Judge of the Court of Claims