New York State Court of Claims

New York State Court of Claims



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
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for additional time to file a late claim after failing to do so within the time permitted by the Court's previous order:
1. Claimant's Notice of Motion, filed June 18, 2003;
2. Affirmation of Marc C. Panepinto, Esq., dated June 17, 2003, with attached exhibits;
3. Reply Affirmation of Paul Volcy, Esq., dated July 2, 2003;
4. Defendants' Memorandum of Law, dated July 2, 2003;
5. Reply Affirmation of Joshua P. Rubin, Esq., dated August 25, 2003;
6. Filed papers: Decision and Order of this Court, filed March 7, 2003. This is Claimant's application for additional time to file a late claim after failing to do so within the time permitted by the Court's previous Decision and Order filed March 7, 2003. In that Decision and Order, I granted Mr. Yackle's application for permission to file a late claim and directed that the claim be filed within 60 days of the filing date of the Decision and Order (by May 6, 2003). The parties agree that the claim was not filed within the requisite 60 days. Claimant served the claim upon Defendants on April 24, 2003. Subsequently, Defendants served and submitted for filing a motion to dismiss the claim, dated May 13, 2003, based upon Claimant's failure to file the claim within the 60 days permitted by the Court's March 7, 2003 Decision and Order. This motion, however, was not calendared by the Clerk because, as no claim had been filed, a motion to dismiss it could not be entertained. Thereafter, on May 16, 2003, Claimant attempted to file the claim with the Clerk of the Court of Claims. However, no filing fee was included with the submission and the claim was rejected for filing by the Clerk.

Claimant filed this motion on June 18, 2003, purportedly opposing Defendants' unfiled motion to dismiss, and requesting that the Court excuse his failure to file his claim in accordance with the March 7, 2003 Decision and Order and grant an additional period of time within which to file the claim.
In his original underlying claim, Claimant alleged that on June 11, 2001, he was diagnosed with silicosis, an occupational lung disorder which in some ways is similar to asbestosis. Although the lapse of time is not explained, Claimant's most recent version of the claim alleges that he became aware of this diagnosis on August 30, 2001. Within his original moving papers, Claimant explained that, for 39 years, he had worked in the construction industry and during most of that time he had been a "pipe foreman." Claimant alleged that, during the performance of his duties associated with this position, which routinely included cutting concrete and sewer pipe, Claimant was regularly exposed to, and inhaled, silica dust. During the course of his career, he was involved in projects on State-owned or operated lands. He alleged that for the nine years prior to his diagnosis in June of 2001, he worked for a contractor of the State of New York, The Oak Grove Construction Company. He alleged that on June 11, 2001, he was engaged in this particular capacity and performed work on the I-90 rehabilitation project between the I-190 interchange and New York State Route 400. He was, he further alleged, exposed to silica dust at this site without being offered a proper protective respiratory device.

Claimant conceded 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 conceded 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 contended, however, that these paper masks were inadequate for their intended purposes and that he did not avail himself of their protection as they would become clogged within minutes. Claimant asserted that Defendants are liable in damages for his developing silicosis and the subsequent disability caused by this disease.

In his earlier motion, in which Claimant asserted violations of Labor Law §§ 200 and 241(6), Claimant alleged that he was injured while working on State projects and identified two regulations that I found sufficiently specific to support a Labor Law § 241(6) cause of action. In my March 7, 2003 Decision and Order, I noted that Defendants' opposition to the earlier motion did not address whether or not adequate proof had been demonstrated to support a cause of action pursuant to the Labor Law. I, therefore, felt constrained to grant Claimant's application and refrained from examining in depth Claimant's assertions relating to the merit of his § 241(6) cause of action.
In support of this motion, Claimant asserts that his failure to file the claim in a timely manner as required by my earlier Decision and Order was inadvertent. Claimant points out that Defendants were served with the claim within the 60 day period and that, although its agent for service of process attempted to file the claim on May 16, 2003, it was rejected as a result of the process server's failure to include with the claim the requisite $50 filing fee. Claimant also maintains that the merit of his underlying action has already been determined by this Court.

Although its defense of the earlier motion did not involve an attack on the merit of Claimant's § 241(6) cause of action, Defendants argue that it is, in effect, allowed a "second bite of the apple" regarding this issue for two reasons. First, as the Claimant is in default, Claimant bears the burden of demonstrating that relief from the time limitations set forth in the Court's previous Decision and Order is warranted. To do this, Defendants assert that Claimant must satisfy the provisions of CPLR § 5015. This requires the Claimant to affirmatively demonstrate: a) that his failure to comply with the order was excusable; and b) merit to his underlying cause of action. Second, Defendants argue that the standard for demonstrating merit under CPLR § 5015 is higher than that of the standard for the "appearance of merit" required for a late claim application under the Court of Claims Act § 10(6) ("the CCA"). For this reason, the Court's previous determination that the proposed claim had the appearance of merit does not relieve Claimant from the burden of demonstrating merit, as defined by CPLR § 5015, in his current application.

I find that the provisions of CPLR § 5015 are applicable in this instance. Despite Claimant's assertions during oral argument that § 5015 did not apply because his motion relates to an order and not a judgment, I note that CPLR § 5015, on its face, clearly states that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just .  .  . " (emphasis added). Claimant is in default for failing to comply with the time limitations for filing his claim as set forth in my March 7, 2003 Decision and Order. To be relieved of this default, Claimant must demonstrate both a reasonable excuse for his default and the merit of his underlying cause of action. I find that Claimant has failed to demonstrate either.

With regard to his excuse for the default, Claimant alleges that the failure to timely file the claim was due to an oversight of Servico, Inc., a process serving company hired by Claimant. Apparently, Servico failed to submit the required filing fee when it attempted to file the claim, and the claim was, therefore, rejected by the Clerk. Initially, I note that Claimant and his attorneys may not evade responsibility for the failure to file in a timely fashion because service of process was referred to an independent contractor for service (Kleeman v Rheingold, 81 NY2d 270). However, I also note that even if Servico had paid the requisite filing fee and the claim been accepted for filing when presented, Claimant would, nonetheless, still have been in default. Pursuant to the terms of my March 7, 2003 Decision and Order, Claimant had until May 6, 2003 to serve and file his claim. The attempted filing of the claim did not occur until May 16, 2003, a point in time when the 60 days had already expired. Finally, I note that Claimant's current application was made in response to Defendants' uncalendared motion to dismiss the claim for failing to file within the time limitations set forth in my previous Decision and Order.

In this application, I find that CPLR § 5015 does indeed require the moving party to demonstrate the merit of its underlying cause of action. In his previous application pursuant to CCA § 10(6), Claimant was required to demonstrate only the appearance of merit. This standard, courts have determined, is relatively low and requires merely that the claim 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 CCA § 10(6) standard for filing a late claim clearly places a heavier burden on the moving party than what is required to be alleged in a timely filed claim, it does not require a moving party "to definitively establish the merits of his claim," and it is something less than is required to vacate a default under CPLR § 5015 (Matter of Santana v New York State Thruway Auth., supra, at 12).

Claimant's burden in this instance is to demonstrate merit. Taking the position that my previous Decision and Order, in which I found the appearance of merit, satisfied his burden in this regard, Claimant offered no new proof in his present motion relating to the merit of his proposed claim. Relying on what was previously submitted by Claimant, I find that Claimant has failed to demonstrate the merit of his underlying claim.

First, despite the fact that Claimant was diagnosed with silicosis in August of 2001, Claimant has failed to offer any proof relating to the onset of the symptoms of his silicosis. Defendants' point that Claimant's doctor noted in his June 4, 2002 letter that Claimant's symptoms had developed "over the past three years" is well taken. It is the date on which Claimant knew or reasonably should have known that he was injured and not the date of diagnosis that is controlling for determining if Claimant's cause of action is timely pursuant to CPLR § 214-c (Wetherill v Eli Lilly & Co., 89 NY2d 506; Krogmann v Glens Falls City School Dist., 231 AD2d 76). While this failure was not fatal in the previous motion where Defendants did not dispute this issue and only the appearance of merit was required, I find that Claimant's failure to demonstrate that his cause of action is timely prevents granting his current application.

Additionally, Claimant has failed to refute Defendants' argument that the Labor Law does not recognize causes of action for industrial diseases. Neither Defendants nor this Court is aware of a case in which a Claimant's contracting asbestosis or silicosis was determined to support a § 241(6) cause of action. In one case, the issue was addressed but not dispositively determined. In Mazzocchi v International Bus. Machs. (294 AD2d 151), the Appellate Division, First Department, determined that an employee's exposure to asbestos laden dust did not support a cause of action under Labor Law § 241(6). The court, although it noted Defendant's argument that § 241(6) did not permit recovery for such injuries, did not determine this issue. Instead, the Court stated:
"Assuming a violation of this rule can support a claim under section 241(6) against a site owner arising out of asbestos contamination, plaintiff's assertions that there were trades on the site working with asbestos materials, that he saw dust on the site and that he worked in small spaces resembling a pit fail to raise genuine issues of fact as to whether, inter alia, he ever worked in a ‘confined space' as defined in 12 NYCRR 12-1.3(f); if so, whether the dust plaintiff saw contained asbestos; if so, whether the dust penetrated the confined spaces where plaintiff worked; and, if so, whether the dust persisted more than ‘momentarily' as required by 12 NYCRR 12-3.1." (Mazzocchi v International Bus. Machs., supra at 152)
Similarly, in this matter, I find no support for the proposition that a violation of this regulation can support a cause of action under Labor Law § 241(6) relating to a later diagnosis of silicosis. I also find that Claimant has failed to demonstrate where or when he sustained his injuries. There has been no proof that Claimant's injuries were sustained or made worse while Claimant was working on State-owned projects. Claimant's own doctor stated that he could only determine that Claimant's disease was contracted sometime during his 39 year career and that it was impossible to determine how any specific exposure over this term of years affected Claimant's condition.

In conclusion, I find that Claimant has failed to demonstrate either a valid excuse for failing to file his claim in accordance with my March 7, 2003 Decision and Order, or actual merit to his underlying claim.

Based upon the foregoing, it is

ORDERED, that Claimant's motion to excuse his failure to file a claim in accordance with this Court's March 7, 2003 Decision and Order and for an additional period of time to file his claim is denied.

March 15, 2004
Rochester, New York

Judge of the Court of Claims