Late claim motion asserting Labor Law violations denied.
|Claimant(s):||In the Matter of the Application of RICHARD TINYES|
|Claimant short name:||TINYES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||ALTON R. WALDON, JR.|
|Claimant's attorney:||O'Connor, O'Connor, Hintz & Deveney, LLP
By: Kevin J. Murtagh, Esq.
|Defendant's attorney:||Hon. Eliot Spitzer, Attorney General
By: Susan J. Pogoda, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 1, 2005|
|Appellate results:||AFFIRMED 2011 N.Y. Slip Op. 02403 [2d Dept 2011]|
|See also (multicaptioned case)|
The Court reviewed the following papers on this motion: Claimant's Notice of Motion, Claimant's Affidavit in Support, Claimant's Affirmation with annexed Exhibits, Defendant's Affirmation in Opposition and Claimant's Reply Affirmation.
Claimant, Richard Tinyes, has moved for permission to file a late Claim(1) pursuant to §10(6) of the Court of Claims Act (CCA). Defendant, the State of New York, has opposed this motion.
Claimant alleges that on October 15, 2001 he was in an employee of Perini Corporation, which had a general contract with defendant to perform construction on the Long Island Expressway service road. On that date, at approximately 9:15 A.M.,claimant was injured at the construction site when a coffee truck operated by a private individual backed up over claimant. Claimant initially alleged violations of Labor Law §§ 200 and 241(6) specifically citing Title 12 New York Codes Rules and Regulation (NYCRR) 23-9.7. However, in his Reply Affirmation, claimant concedes that Labor Law § 200 is not applicable in this matter.
The Court of Claims Act §10(6) grants upon the Court the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and
Firemen's Retirement System, 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). They are whether (1) the delay in filing the claim was excusable; (2) the defendant had notice of the essential facts constituting the claim; (3) the defendant had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the defendant was
substantially prejudiced; and (6) the claimant has any other available remedy. A Proposed Claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the almost three year delay in the filing of the claim.
Defendant has not raised any specific objections based on the closely related factors of notice, opportunity to investigate and prejudice. Consequently, the Court finds these factors to be in claimant's favor (Ayala v City of New York, 189 AD2d 632 [1st Dept 1993]).
Claimant has a viable action against other entities in Supreme Court..
The most significant issue considered by the Court in an application to file a late claim is whether the claim appears meritorious. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Claimant bases his claim on Labor Law § 241(6) specifically citing 12 NYCRR 23-9.7(d) which states that trucks shall not be backed or dumped in places where persons are working nor backed into hazardous locations unless guided by a person so stationed that he sees the truck drivers and the spaces in back of the vehicles. In his Affidavit attached to this motion, claimant affirms that at the time of the accident he was employed by Perini as a heavy equipment operator. Claimant recounts that the coffee truck backed up and struck him, however, he fails to specifically explain what he was doing just prior to be being struck by the coffee truck. The Accident Report states that claimant was at the rear of the truck with the hatch open suggesting that claimant had either just gotten or was in the process of taking food from the truck (see Cl Exh B). From the totality of the papers submitted by claimant, he seems to be suggesting that he was merely a pedestrian walking behind the coffee truck at the time of the accident. Either way it does not appear as though claimant, a heavy equipment operator, was engaged in construction work at the time of the accident and thus cannot put forth a valid claim pursuant to § 241(6) (Nagel v D & R Realty Corp., 99 NY2d 98 ; Bonura v KWK Associates, Inc., 2 AD3d 207 [1st Dept 2003]). Additionally, 12 NYCRR 23-9.7(d) does not apply to a coffee truck since 12 NYCRR 23-9.1 defines the provisions of the subpart as applying to power-operated heavy equipment or machinery used in construction, demolition and excavation operations. Consequently, claimant has failed to show that his claim has the appearance of merit.
Therefore, for the foregoing reasons, claimant's motion to file a late Claim is denied.
September 1, 2005
New York, New York
ALTON R. WALDON, JR.
Judge of the Court of Claims
1. The Court of Claims Act does not provide for the filing of a late Notice of Claim.