Claimant moves for permission to file a late claim based solely upon alleged
violations of Labor Law 200, 240 (1) and 241 (6) pursuant to CCA 10 (6). More
specifically and as will be discussed further hereinbelow, claimant emphatically
insists that this motion seeks relief to file a late claim based only upon
violations of the Labor Law, not ordinary negligence and not medical
(Affirmation of Jeffrey M.
Brody, Esq., ¶ 4; Reply Affirmation of Jeffrey M. Brody, Esq., ¶
¶ 2 & 3). The State of New York (hereinafter "State") opposes the
On March 1, 2003, claimant, an inmate, alleges he was assigned to work in the
chapel at Sullivan Correctional Facility. Claimant avers that he "[h]ad to
retrieve instruments, specifically a guitar, that was stored on a very high
shelf within the chapel, unreachable without the assistance of a climbing device
such as a ladder. Unfortunately, there were no ladders made available to me for
my use. As a result, I climbed up on a series of shelves at a height of at
least six feet in order to accomplish the assigned task." (Cl.'s Affidavit,
¶ 3). Claimant fell from the shelves and broke both ankles. Claimant
further alleges that correction officer(s) were in the area at the time of his
fall, witnessed him climbing the shelves and came to his immediate aid after his
fall, although they did not witness the fall itself. (Cl.'s Affidavit, ¶
5). Claimant also alleges that there were no "ladders or other such appropriate
climbing apparatus" made available to him in the chapel. (Cl.'s Affidavit,
As a threshold issue, the court must determine whether it has jurisdiction to
review and determine this motion. (CPLR 214; CCA 10 ). This motion was
filed on January 5, 2005, relating to an incident which occurred on March 1,
2003. Thus this motion, which alleges causes of action based on violations of
the Labor Law, has been timely made within the parameters of CPLR article 2,
namely three years from the date of accrual.
Turning to the substance of claimant's motion, the factors that the court must
consider in determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable;
2. the State had notice of the essential facts constituting the claim;
3. the State had an opportunity to investigate the circumstances
underlying the claim;
4. the claim appears to be meritorious;
5. 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
6. the claimant has any other available remedy.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), since it would be futile to permit a meritless claim to proceed.
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In
order to establish a meritorious claim, a claimant must establish that the
proposed claim is not patently groundless, frivolous, or legally defective and
that there is reasonable cause to believe that a valid claim exists.
(Id. at 11).
As noted above, claimant's counsel avers that this proposed claim "[i]s not a
claim based in ordinary negligence, but rather on very specific sections of the
New York State Labor Law." (Affirmation of Jeffrey M. Brody, Esq., ¶ 4).
Claimant's assumption as to the applicability of the Labor Law to the facts of
this case is misguided. It is well-settled that the Labor Law is not directly
applicable to inmate claims arising within a correctional facility.
(Maldonado v State of New York, 255 AD2d 630; D'Argenio v Village of
Homer, 202 AD2d 883, 884). That having been said, however, the State owes a
duty to exercise reasonable care to provide for an inmate's safety, including
proper instruction and supervision, and to provide "[a] safe place in which to
work and with safe equipment in good repair and properly maintained."
(Fitzgerald v State of New York, 28 Misc 2d 283, 285; Maldonado,
255 AD2d 630; Kandrach v State of New York, 188 AD2d 910, 913). As such,
although not directly applicable, the Labor Law and regulations issued
thereunder may be reviewed in determining the standard of care applicable to the
State in a common law action for negligence at a correctional facility.
(Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665;
Palmisano v State of New York, 47 AD2d 692). Of course, "[t]he mere
happening of an accident carries with it no presumption of negligence on the
part of the State [citation omitted]." (Fitzgerald, 28 Misc 2d at 285).
Moreover, "[w]here an inmate fails to use ordinary care and pursues a dangerous
course of conduct, he or she is required to take some responsibility for his or
her own negligence [citations omitted]." (Martinez v State of New York,
225 AD2d 877, 878). In fact, claims have been dismissed where an inmate has
refused to use proper safety equipment or to call a supervisor's attention to
the fact that such protective equipment has become unusable. (Maldonado,
255 AD2d 630; McLoud v State of New York, 237 AD2d 783, 785).
Here, the circumstances leading up to claimant's decision to climb the shelves
are not set forth in much detail. For instance, claimant does not indicate
whether he was instructed to retrieve the instrument from the high shelf by a
supervisor, whether he had previously been instructed where a ladder was
located, whether he advised the correction officer(s) that no ladder was
available, or whether the correction officer(s) who witnessed him climbing the
shelves instructed him to stop. Nevertheless, the State has not offered
anything in opposition from someone with firsthand knowledge disputing the
general circumstances leading up to this accident. It is well-settled that
"[f]acts stated in a motion for leave to file a late claim against the State are
deemed true for purpose of motion, when not denied or contradicted in opposing
affidavits [citations omitted]." (Sessa v State of New York
, 88 Misc 2d
454, 458, affd
63 AD2d 334, affd
47 NY2d 976). As such, in view
of the relatively low threshold applicable on late filing motions, the court
finds that the allegations here are sufficient to demonstrate the appearance of
merit for an action for ordinary negligence, but not based on specific
violations of the Labor Law. (Abruzzese v State of New York
, Ct Cl, June
13, 2000, Corbett, Jr., J., Claim No. None, Motion No. M-59455 [UID No.
As noted above, claimant has not sought permission to file a late claim based
upon a medical malpractice cause of action claim in connection with this
application. More specifically, claimant's counsel concludes that since
claimant's medical treatment is ongoing the time in which to comply with CCA 10
and 11 has not yet been triggered. (Affirmation of Jeffrey M. Brody, Esq.,
¶ 4; Reply Affirmation of Jeffrey M. Brody, Esq., ¶ 3). The court
makes no determination on the applicability of the continuous treatment doctrine
to this case, but cautions claimant against presuming the continuing application
of the continuous treatment doctrine, particularly in light of the commencement
With respect to the remaining factors, claimant offers as an excuse for his
late filing his unawareness that he possessed a Labor Law claim. As noted
above, the proposed cause of action is based in common law negligence, not on
violations of the Labor Law. In any event, ignorance of the law is an
unacceptable excuse. (Innis v State of New York, 92 AD2d 606,
affd 60 NY2d 654). This factor weighs against claimant.
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors and may be considered
together since they involve analogous considerations. The State has failed to
come forward with an affidavit from anyone with firsthand knowledge of these
events, such as the correction officer(s) on the scene denying any allegation
set forth by claimant. (Matter of Powell v State of New York, 187 AD2d
848; Calzada v State of New York, 121 AD2d 988, 989). Given the timely
notifications of the nearby correction officer(s), the court finds that the
State obtained notice of the essential facts and an opportunity to investigate.
Accordingly, the court also finds that the State would not suffer substantial
prejudice were this application granted as there is no allegation that witnesses
are no longer available. The court finds these three factors favor
The last factor is whether claimant has any other available remedy. The State
has conceded that claimant has no alternate remedy. The court agrees and finds
this factor weighs in claimant's favor.
Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
court finds that five of the six factors, including the all-important factor of
merit, weigh in claimant's favor.
Accordingly, for the reasons stated above, IT IS ORDERED that claimant's motion
for permission to late file, Motion No. M-69538, is GRANTED IN PART and DENIED
IN PART in accordance with the foregoing. Claimant shall file a claim with the
Clerk of the Court and serve a copy of the claim upon the attorney general
within sixty (60) days from the date of filing of this Decision and Order with
the Clerk of this Court. The proposed claim should be revised to reflect an
ordinary negligence cause of action and not violations of the Labor Law. The
service and filing of the claim shall be in conformity with all applicable
statutes and rules of the court with particular reference to CCA 10, 11 and