New York State Court of Claims

New York State Court of Claims

MANCINELLI v. THE STATE OF NEW YORK, #2003-031-098, , Motion No. M-65837


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:
December 5, 2003

Official citation:

Appellate results:

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 September 19, 2002;
2. Affidavit of Marc Mancinelli, sworn to August 20, 2002;
3. Affirmation of Marc C. Panepinto, Esq., dated August 20, 2002, with attached exhibits;
4. Supplemental Affirmation of Joshua P. Rubin, Esq., dated June 20, 2003;
5. Affidavit in Opposition of Douglas P. Hamberger, Esq., sworn to June 23, 2003;
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 the accident.

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 Claimant's favor.

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 985).

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 action.

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 filed.

December 5, 2003
Rochester, New York
Judge of the Court of Claims