Movant's application for late claim relief pursuant to Court of Claims Act
§ 10 (6) is granted to the extent that it seeks permission to serve and
file a claim alleging a violation of Labor Law § 240(1) and denied as to
that portion which alleges a violation of Labor Law § 241 (6), Labor Law
and common law negligence. The
proposed claim alleges that movant sustained personal injuries on June 11, 2004
while working as a laborer on a sidewalk demolition/re-construction project in
the Village of Hoosick Falls, New York. Specifically, movant alleges that on
the date of his accident he was helping to guide a 1,000 lb granite block into
an excavated trench when it fell from a motorized hoisting device striking him
and causing injury to his spine. At the time movant was employed by A & K
Slip Forming which purportedly had contracted with the State of New York to
remove and replace sidewalks as part of a project to refurbish village streets
and appurtenances including water lines and electrical connections.
The defendant opposed the motion.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy".
The motion filed on February 25, 2005 is timely in that a claim for personal
injuries negligently caused or for which liability is imposed by statute is
governed by the three year Statute of Limitations set forth, respectively, in
CPLR § 214 (5) and § 214 (2).
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuses offered for the failure to timely commence the claim are movant's
unfamiliarity with the filing and service requirements of the Court of Claims
Act and his preoccupation with obtaining approval from workers' compensation for
certain surgical expenses. It is settled that ignorance of the law is not an
acceptable excuse (Matter of E.K. v State of New York, 235 AD2d 540;
Sevillia v State of New York, 91 AD2d 792). Movant's alleged
preoccupation with workers' compensation benefits and his severe pain, while
understandable distractions, are not reasonable excuses for the failure to
timely file a claim, especially as presented by movant and his counsel on this
motion. Under the circumstances described in the late claim application the
Court finds the excuses offered to be unreasonable (Atterbury v State of New
York, 26 Misc 2d 422) and this factor weighs against granting movant's
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. In his supporting affidavit movant alleges upon
information and belief, the source of which is not specified, that defendant
received notification of the accident either from movant's employer or from
Rifenburg Construction, another contractor on the work site. While such
allegations are generally insufficient to demonstrate that the State was
provided timely notice of an accident and an opportunity to investigate, the
State's opposition to the motion does not directly refute the allegation that it
received notice of movant's accident and does not allege facts tending to
establish any prejudice resulting from movant's delay. As a result the Court
concludes that the factors of notice, opportunity to investigate and prejudice
weigh in favor of granting the application.
As to the issue of merit, the proposed claim presents a potentially viable
cause of action under Labor Law § 240 (1). In order to establish a
meritorious claim it is movant's burden to show that the proposed claim is not
patently groundless, frivolous or legally defective and there is reasonable
cause to believe that a valid claim exists (see, Rosenhack v State of
New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). Here the alleged failure of the hoist (one of the
devices enumerated in Labor Law § 240 ) which caused the granite block
to fall from an elevated height facially supports a Labor Law § 240 (1)
cause of action. As a result, the Court finds that in this regard the claim
appears to be meritorious.
A contrary conclusion, however, is reached relative to movant's proposed cause
of action under Labor Law § 241 (6). The proposed claim fails to "specify
any provisions of the Industrial Code allegedly violated by the State or to set
forth sufficient facts to determine the manner in which the accident occurred"
for purposes of determining the potential merit of movant's Labor Law § 241
(6) cause of action (Scarver v State of New York , 233 AD2d 858).
Movant's conclusory assertion of a violation of Labor Law § 241 (6),
without more, is insufficient to establish that the claim is, in this respect,
Similarly, a cause of action for common law negligence at a construction site
requires some showing that the defendant exercised supervisory control over the
operation or manner of the work being performed (Comes v New York State Elec.
& Gas Corp.
, 82 NY2d 876; Medinosky v State of New York
, Ct Cl
[Claim No. None, Motion No. M-66291, UID # 2003-019-535] Lebous, J.,
No such showing has been made
on this application. Movant's motion for late claim relief is, therefore,
denied to the extent that the proposed claim seeks to assert causes of action
under Labor Law § 241 (6) and/or common law negligence.
As to the final factor, it appears that movant has another remedy available
under the Workers' Compensation law.
Upon consideration of all the relevant statutory factors, the Court finds that
the movant has set forth sufficient factual allegations to demonstrate the
apparent merit of a claim for damage under section 240 (1) of the Labor Law.
Movant is hereby permitted to file a verified claim based solely on Labor Law
§ 240 (1) with the Chief Clerk of the Court and to serve a copy thereof
upon the Attorney General either personally or by certified mail, return receipt
requested, as provided in Court of Claims Act § 11 (a) (i) within 30 days
of service of a copy of this decision and order.