6. Reply Affirmation of Joshua P. Rubin, Esq., dated June 24, 2003. With this
motion, Marc Mancinelli seeks permission to file a late claim pursuant to
§ 10(6) of the Court of Claims Act (the "CCA"). In his motion papers,
Claimant alleges that, on June 18, 2001, he was injured in a workplace accident
while employed as a carpenter by Daniel J. Mergenhagen Inc. Claimant's employer
was a subcontractor on a renovation project at the Buffalo Psychiatric Center, a
facility owned and operated by the New York State Dormitory Authority. Claimant
alleges that he was injured when he slipped and fell while carrying drywall up a
flight of stairs. According to Claimant, he slipped on debris which had been
permitted to accumulate on the staircase. Claimant asserts that he injured his
back in the fall and has been unable to work since shortly after the accident.
He alleges that Defendant is liable in damages for violations of Labor Law
§§ 200 and 241(6).
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).
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, however, 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).
Claimant alleges in his affidavit that he has no other remedy, although he does
indicate that he filed a Workers' Compensation claim. 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 a partial remedy (Garguiolo v New York State
Thruway Authority, 145 AD2d 915). Additionally, though not mentioned in
Claimant's papers, Defendant points out that Claimant has commenced an action in
Supreme Court relating to the same underlying causes of action against the
General Contractor on the project. For these reasons, I find that 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 alleges that, within a week of
the accident, he filled out the necessary paperwork to file his Workers'
Compensation claim. He alleges that Defendant had access to this paperwork and
that the insurance carrier handling the Workers' Compensation claim is the same
carrier that would be handling this matter if it were permitted to proceed. For
these reasons, Claimant maintains that Defendant has not been prejudiced by
Claimant's delay in filing a claim, as Defendant had both notice of and a chance
to investigate the accident.
Defendant argues that Claimant did not report the incident for at least four
days, and that the Defendant did not have notice of a potential claim until this
motion was filed. Defendant, therefore, argues that it is significantly
prejudiced by being unable to conduct an investigation at, or about, the time of
I find that Defendant did not have notice of the essential facts surrounding,
or a chance to investigate the proposed claim. These factors, therefore weigh
in Defendant's favor. However, it appears from the Defendant's own papers that
it would have been difficult to investigate the claim as it related to the work
area and the alleged debris on the steps even four days after the incident when
Claimant reported the matter to his employer. It does not appear, therefore,
that the Claimant's delay in filing the claim had a negative impact on the
Defendant in this regard. For this reason, I find that the Defendant has not
been significantly prejudiced by the delay and that this factor weighs in
This brings us to the final, and what is often considered the most important
factor, merit. Claimant's proposed claim asserts causes of action based upon
Labor Law §§ 200 and 241(6). 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 landowner 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). Liability under
§ 200 can also attach if Claimant can demonstrate that the injuries
suffered were the result of a dangerous or defective condition on the owner's
property, and that Defendant had notice of the alleged dangerous or defective
condition (Blackburn v Eastman Kodak Co., 256 AD2d 1123).
However, 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, or that Defendant had notice of the dangerous condition
which led to his injuries. For this reason, I find that Claimant has failed to
establish the existence of a meritorious claim under Labor Law § 200.
Claimant also argues that the State is liable under § 241(6). Unlike
§ 200, Labor Law §241(6), does not require an element of
supervisory control for liability to attach. § 241(6) imposes a
non-delegable duty upon owners and contractors to provide reasonable and
adequate protection and safety to workers. 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).
Claimant has identified three regulations which were allegedly violated.
The proposed Claim alleges that Defendant failed to take proper precautions to
keep the area in which Claimant was working free of slipping and tripping
hazards in violation of Subdivisions (d) and (e) of 12 NYCRR 23-1.7. Claimant
correctly points out that these regulatory provisions set forth a specific
standard of conduct imposing a non-delegable duty upon a property owner or
general contractor which will support an action under Labor Law
§ 241(6) (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343;
Tucker v Edgewater Constr. Co., 281 AD2d 865; see also Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra).
Claimant argues in counsel's supplemental affidavit that Defendant also
violated 12 NYCRR § 23-2.1 ( Maintenance and Housekeeping), however, I
find that this provision is general in nature and does not provide specific
requirements the violation of which will support a cause of action under Labor
Law § 241(6) (see Mendoza v Marche Libre Assocs., 256 AD2d
133; Jackson v Williamsville Central School District, 229 AD2d
Defendant asserts that the allegation in the proposed claim that Claimant
"tripped and/or slipped on dirt, mud, concrete, dust and/or oil and other
debris" is too general. Defendant argues that, because the incident was not
witnessed, and because Claimant does not specifically identify what he slipped
or tripped upon, he has failed to demonstrate the meritoriousness of his alleged
§ 241(6) cause of action.
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., 92
Misc 2d 1, supra, at 11-12 ). Based upon this standard, I find that
Claimant has demonstrated that the proposed Labor Law § 241(6) cause of
action has the appearance of merit.
Upon reviewing and balancing all of the factors enumerated in CCA
§ 10(6), I find that they weigh, if only slightly, in favor of
granting the relief requested to the extent that Claimant should be permitted to
file a claim based upon the alleged Labor Law § 241(6) cause of
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 to do so in conformance with the requirements of CCA
§§ 10, 11 and 11-a within sixty (60) days after this order is