New York State Court of Claims

New York State Court of Claims

ELIAS v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2004-030-946, Claim No. None, Motion No. M-69223


Case Information

FERNANDO ELIAS and MARIA ELISA ELIAS The court has stricken the reference to the New York State Department of Transportation, a state agency without independent legal existence, from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has stricken the reference to the New York State Department of Transportation, a state agency without independent legal existence, from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Scarcella Law Officesby M. Sean Duffy, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
by Susan J. Pogoda, Assistant Attorney General

Fabiani & Cohen, LLPby David J. Montag, Esq.
Third-party defendant's attorney:

Signature date:
March 23, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimants' motion for permission to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition of Susan J. Pogoda dated November 10, 2004; Affirmation in Opposition of David J. Montag dated November 23, 2004. Claimant[1] seeks permission to file a claim arising out of an October 3, 2003 workplace accident on the Bruckner Expressway in the Bronx in which he was injured by a portable, power-driven, hand-held saw that was being operated by a co-worker. According to the proposed claim, which was verified by the claimant (who did not submit an affidavit in support of the instant motion):
The subject claim arose at the above time and place when plaintiff [sic] was injured by a portable, power-driven hand operated saw; upon belief, when said saw was removed from the cut, the saw blade remained exposed and remained moving and came in contact with the person of plaintiff [sic] causing plaintiff [sic] to be injured. (Proposed claim, par. 7)
Claimant also submits three reports that were completed at the time of the accident (Exhibit "C" to notice of motion). In the first statement, a benefits administrator with claimant's employer (Columbus Construction) wrote: " J. Dossantos was cutting plywood with all purpose saw when finished he turned saw off and swung the saw backwards cutting Fernando's calf (left)" (id.). A safety officer conducted an investigation into the incident and wrote that the cause was "all purpose saw still running after turning it off. (Blade still runs due to stored energy." The third report was written by someone who "did not see" the incident but aided in administering first-aid.

Court of Claims Act §10(6) grants the court the discretion to allow the filing of a late claim, upon consideration of all relevant factors, including whether claimant's failure to timely file was excusable, whether defendant had timely notice and the opportunity to investigate the relevant facts and circumstances, whether defendant would suffer substantial prejudice from an order allowing late filing, whether claimant has an alternate remedy and whether the proposed claim appears meritorious.

Claimant has offered no plausible reason why he did not act promptly to either commence an action in this court or preserve his right to do so by serving a notice of intention to file a claim within 90 days of the incident (Court of Claims Act §10[3]). Nevertheless, such is but one factor to consider (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policeman's and Fireman's Retirement System, 55 NY2d 979).

The proposed claim contains three causes of action: the first sounding in negligence, the second based on alleged violations of Labor Law §§ 200 and 241(6) and the third on behalf of claimant's wife for loss of services and consortium.

There is no indication in the submitted papers that there is any merit to the proposed negligence cause of action since there is absolutely no reference to any negligent conduct on the part of any person for whose conduct the defendants[2] could be held liable.

With respect to liability pursuant to Labor Law §200:
It is well settled that an owner of property cannot be held liable under Labor Law § 200 when the claimant's injury results from the method of work prescribed by the contractor or results from equipment supplied by the contractor if the owner did not exercise supervisory control over the injured worker (Comes v New York State Elec. & Gas, 82 NY2d 876; Bailey v Hammedani, 241 AD2d 645; Blessinger v Estee Lauder Cos., 271 AD2d 343). Supervisory control must be more than general oversight of the timing and quality of the work (Gonzalez v United Parcel Serv., 249 AD2d 210; Riccio v Shaker Pine, 262 AD2d 746).
(Lang v State of New York, Ct Cl, Collins, J., decision and order dated July 1, 2002, UID No. 2002-015-266). Although the court will accept, for purposes of this motion, claimant's allegation that defendants were owners of the subject premises or contractors on the subject project, there is absolutely no indication of any supervisory control such as is required for section 200 liability. Indeed, claimant's submission does not address section 200 or common-law negligence.

The cause of action based on Labor Law §241(6) is based, as it must be, on an alleged violation of a portion of the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Here, claimant relies on 12 NYCRR §23-1.12 ("Guarding of Power-Driven Machinery"), specifically paragraph (c)(1), which provides:
Every portable, power-driven, hand-operated saw which is not provided with a saw table, except chain saws and circular brush saws, shall be equipped with a fixed guard above the base plate which will completely protect the operator from contact with the saw blade when the saw is operating and with a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut.
The court does not agree with defendants that claimant needs to submit expert proof on the question of whether this regulation was violated, or that the record indicates that the subject saw was in full compliance with the rule. Claimant's burden is to show that the proposed cause of action is not patently groundless, frivolous or legally defective and that there is a reasonable basis for the contention that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The court finds that claimant has satisfied this standard with respect to the cause of action based on Labor Law §241(6) but has failed to demonstrate the existence of an apparently meritorious claim with respect to the section 200 and negligence causes of action.

Defendants do not dispute claimant's contention that the contemporaneous accident reports and subsequent investigation provided prompt notice, but they do claim substantial prejudice accruing from the one-year delay between the incident and the service of claimant's motion for permission to late file. The court notes that claimant has a products liability action pending against the manufacturer of the saw and that the subject saw has apparently been preserved and will be available for inspection. The court finds that there would be substantial prejudice should defendants be compelled to defend a negligence or section 200 cause of action, but that claimant's delay has not caused substantial prejudice to its defense of the section 241(6).

cause of action.

Finally, it is noted that claimant has a partial alternate remedy in the form of workers' compensation benefits and a contingent alternate remedy in the form of his products liability action.

On balance, the court concludes that the motion should be granted with respect to the section 241(6) cause of action and should be otherwise denied.

The proposed claim will require substantial pruning in order to comply with this order and with the Court of Claims Act, as follows:

1. The references to the New York State Department of Transportation as a party should be eliminated from the caption and from the body of the claim.

2. Paragraph "7" should be rewritten to fully and accurately reflect the circumstances of the accident.

3. Paragraphs "14" through "28," each of which allege in various repetitive forms that the State of New York was responsible for the area in question, should be consolidated into a single one or two-sentence paragraph alleging that the state is an owner of the property and/or a contractor on the project.

4. Paragraphs "29" through "43" should be consolidated into a similar single paragraph making the same allegations against the Thruway Authority.

5. Paragraphs "11" and "44" through "58," relating to the New York State Department of Transportation, should be eliminated.

6. The first cause of action, sounding in negligence, should be eliminated as should its associated demand for relief.

7. Paragraph "68," relating to Labor Law §200, should be eliminated.

With those modifications to the proposed claim, the motion is granted in part and denied in part as set forth herein. Claimants may serve and file their claim, in accordance with all relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, particularly with reference to manner of service, the necessity to separately serve both defendants, and payment of the statutory filing fee, within 30 days of the filing date hereof.

March 23, 2005
White Plains, New York

Judge of the Court of Claims

[1]Fernando Elias was the party injured in the subject accident. The claim of his wife, Maria Elisa, is for the loss of his services and companionship. All references herein to "claimant" are to Fernando Elias.
[2]Neither claimants nor defendants distinguished between the State and the Thruway Authority in their submissions.