New York State Court of Claims

New York State Court of Claims

OLSEN v. THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF PARKS, RECREATION AND HISTORIC PRESERVATION, AND PALISADES INTERSTATE PARK COMMISSION, #2006-010-040, Claim No. NONE, Motion No. M-72268


Synopsis


Claimant’s late claim application is denied. Fall at construction site - no appearance of merit established.

Case Information

UID:
2006-010-040
Claimant(s):
JERRY OLSEN
Claimant short name:
OLSEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF PARKS, RECREATION AND HISTORIC PRESERVATION, AND PALISADES INTERSTATE PARK COMMISSION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72268
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
SOBO & SOBO, LLPBy: Gregory M. Sobo, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: THUILLEZ, FORD, GOLD, JOHNSON & BUTLER, LLPLauren M. Snyder, Esq., Of Counsel
Third-party defendant’s attorney:

Signature date:
January 31, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s late claim application:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Attorney’s Affirmation in Opposition[1] and Exhibits...............................................2

Reply Affirmation....................................................................................................3

This late claim application arises out of an alleged incident which occurred at a construction work site when a worker purportedly slipped and fell. The proposed claim alleges: a date (August 11, 2005); a time (12:45 - without any specification as to a.m. or p.m.); and a location (The Bear Mountain Inn, Bear Mountain, NY) (Claimant’s Ex. 3). There is, however, no assertion of injury to claimant, either personal injury or property damage, nor are there sufficient factual allegations which would provide defendant with notice of the essential facts upon which the proposed claim is based. Rather, the proposed claim makes broad conclusory statements and asserts violations of Labor Law Sections 200 and 241(6) and violations of the New York Industrial Code Sections 12 NYCRR 23-1.7 (e)(1) (Protection from general hazards, Tripping and other hazards, Passageways); 12 NYCRR 23-1.7(e)(2) (Working areas); 12 NYCRR 23-1.30 (Illumination); 12 NYCRR 23-1.5 (General responsibility of employers); 12 NYCRR 23-1.32 (Imminent danger--notice, warning and avoidance).

Claimant’s affidavit, included with the late claim application (Claimant’s Ex. 8), states that claimant was doing plumbing work for Mid Hudson Mechanical Corp. (Mid Hudson) in the basement of the Bear Mountain Inn when he “tripped and fell on construction debris located in a work area on the construction site” (id. at ¶2). Claimant further states that, “[a]s a result of the fall, my face struck the ground causing serious injuries including, but not limited to, a fractured nose and a deviated septum requiring surgery, shoulder, neck and back injuries” (id. at ¶3). Claimant reported the accident to his employer, Mid Hudson. An investigation was undertaken and an incident report was made (Defendants’ Ex. A). Claimant reported that he tripped and fell over a two by six at the construction site, landed on his face and injured his nose, lips and teeth (Defendants’ Ex. B). However, the incident report did not provide sufficient notice of any potential negligence of defendant which could have contributed or caused claimant’s accident (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 [claimant failed to adequately set forth sufficient facts demonstrating that the proposed claim was meritorious]).

Approximately 48 days post-accident, claimant served a Notice of Claim upon the Executive Director of the Palisades Interstate Park Commission; the Legal Department of the Palisades Interstate Park Commission; and the Legal Department of the New York State Department of Parks, Recreation and Historic Preservation (Claimant’s Exs. 1, 2). Curiously, the attorney who prepared the Notice of Claim and the attorney who submitted this late claim application are the same, yet the proposed claim submitted with this application fails to include any of the specifics set forth in the improperly served Notice of Claim. For example, unlike the proposed claim, the Notice of Claim alleged that the accident occurred at 12:45 “p.m.” (Claimant’s Ex. 1 at ¶3). Additionally, unlike the proposed claim, the Notice of Claim specified the location of the accident as “in the hallway area of the basement, near a drain on the floor” (id.). The Notice of Claim also had photos of the area attached as Exhibit 1 (Claimant’s Ex. 1). The Notice of Claim also set forth factual allegations, i.e., “[t]he manner in which the claim arose is that while the claimant, Jerry Olsen, was in the course of his employment, he was caused to trip and fall to the ground by construction debris and other tripping hazards” (id. at ¶3). Finally, the Notice of Claim alleged damages as follows:
“severe and serious permanent injuries to his mind and body, including but not limited to, loss of consciousness, fractures to his face, fractures to his nose, fractures requiring surgery, swelling to the nasal septum, deviated septum, sinusitis, facial lacerations, head trauma, and injures to his neck, back, and shoulders, medical bills, and lost wages that are a result of the incident described herein”

(id. at ¶4). It is perplexing as to why the attorney who prepared the motion papers noted in detail the specifics as set forth in the Notice of Claim (Attorney’s Supporting Affirmation, ¶4), yet failed to include any of those specifics in the proposed claim. Counsel’s argument, that timely service of the Notice of Claim upon the Executive Director of the Palisades Interstate Park Commission, the Legal Department of the Palisades Interstate Park Commission, and the Legal Department of the New York State Department of Parks, Recreation and Historic Preservation “provided a better opportunity to investigate the claim (emphasis in original)” (id. at ¶8) rather than complying with the strict jurisdictional mandates of the Court of Claims Act §§ 10 and 11, is without basis in law.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979). The Court has considered all six factors.

It is well established that ignorance of the law is not a valid excuse for untimely service of a claim (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413, supra). Accordingly, claimant’s counsel has failed to establish a reasonable excuse for his failure to properly serve a claim upon defendant within the time constraints set forth in the Court of Claims Act. It is also noted that claimant has another available remedy via Workers’ Compensation and has failed to provide any information as to the adequacy of those benefits (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118).

It has been found that prejudice is more likely to result in cases where a potential claim involves conditions which are transitory in nature, as in the changing conditions of a construction site (see Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [State would be prejudiced by delay because of changing nature of construction site and bare conclusory allegations to support potential claim]). So too here, the unrefuted affidavit of Edward Dunnigan, the Engineer-In-Charge employed by the New York State Department of Parks, Recreation and Historic Preservation on the date of claimant’s accident, indicates that Fox Industries was the general contractor for the construction project at the Bear Mountain Inn and Mid Hudson Mechanical Corp., claimant’s employer, was the plumbing contractor and Naber Electric was the electrical contractor. All three contractors were on-site on the date of claimant’s accident, as well as additional subcontractors. Dunnigan stated that, “[d]ue to the busy and ever-changing nature of this construction site the conditions that existed on August 11, 2005, are completely different now” (Dunnigan Affidavit at ¶12). It is also not clear as to how claimant’s accident occurred.

Dunnigan did concede that the Resident Inspector, Joe Galu, advised Dunnigan of claimant’s accident and provided Dunnigan with a daily report regarding the accident (Dunnigan Affidavit at ¶10). Additionally, five days post-accident, Galu completed an accident report which Dunnigan reviewed in addition in Galu’s daily diary regarding the incident (id.). While claimant’s accident was apparently the subject of a timely investigation (Claimant’s Exs. 4, 5), it is unclear from the investigation as to how the accident arose and whether defendant is responsible for causing or contributing to claimant’s accident.

The most significant factor in deciding a motion for leave to serve and file a late claim is whether the proposed claim has an appearance of merit. “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891). While claimant’s counsel acknowledges an awareness of case law holding that a party seeking to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1) (Attorney’s Supporting Affirmation, ¶15), there is a complete absence of any appearance of merit with regard to a number of the allegations and counsel’s affirmation that “this Claim should be permitted because it is indeed a meritorious claim” is a conclusory, self-serving statement from someone who does not have personal knowledge of the facts which form the basis of the proposed claim and, therefore, does nothing to advance a showing of an appearance of merit (id.). Contrary to counsel’s bold assertion that “[t]he Claim is adequately detailed and set forth in the form recommended by the Court of Claims itself” (Reply Affirmation at ¶14), the proposed claim is not adequately detailed. For example, the proposed claim alleges a cause of action pursuant to Labor Law § 241(6) based upon violations of a number of provisions of the Industrial Code, yet the proposed claim failed to specify the manner of the violations and how defendant purportedly contributed or caused claimant’s accident (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). The Court has painstakingly considered each and every alleged violation of the Industrial Code[2] and finds a lack of an appearance of merit; such analysis was significantly absent from defendant’s opposition papers.

The proposed claim alleges a violation of 12 NYCRR 23-1.30 (Illumination); however there is no factual basis set forth in either the proposed claim or any other documents submitted as exhibits to the late claim application which state that illumination was a contributing cause of claimant’s alleged accident. Thus, there is no showing of merit based upon this section. Similarly, while the proposed claim alleges a violation of 12 NYCRR 23-1.7(e)(1) (Protection from general hazards, Tripping and other hazards, Passageways), there are no factual allegations that the accident occurred in a passageway. Claimant’s affidavit states that the accident occurred “in a work area on the construction site” (Claimant’s Ex. 8). There is also no mention of a passageway in the incident reports (Claimant’s Exs. 5-7). The only reference to any kind of passageway appears in the Notice of Claim, which was neither timely nor properly served. The Notice of Claim states that the accident occurred in the “hallway area of the basement” (Claimant’s Ex. 1 at ¶3). Again, the Court is perplexed as to why such detail did not appear in the proposed claim submitted by counsel on this late claim application. Under the circumstances, the Court is constrained to find that there is a lack of an appearance of merit regarding a violation of 12 NYCRR 23-1.7(e)(1) (see O’Sullivan v IDI Constr. Co., Inc., 28 AD3d 225 [Labor Law § 241(6) claim based on 12 NYCRR 23-1.7(e)(1) failed because no showing claimant was injured in a passageway], affd 7 NY3d 805).

While claimant also alleges a violation of 12 NYCRR 23-1.7(e)(2) (Working areas), there is also an insufficient showing of an appearance of merit to establish that defendant is the party who is responsible for any violation of this section and that such violation was a proximate cause of claimant’s accident. With regard to 12 NYCRR 23-1.32 (Imminent danger--notice, warning and avoidance), there has been no showing of, inter alia, “noncompliance” which “causes or tends to cause imminent danger” and “written notice thereof *** given by the commissioner to the appropriate employer, owner, contractor or his agent” as required by an alleged violation of this provision. Accordingly, there is no basis for finding an appearance of merit for an alleged violation of 12 NYCRR 23-1.32.

There is also a lack of an appearance of merit of claimant’s proposed claim alleging a violation of Labor Law § 200. Section 200 is a codification of the common-law duty imposed on an owner or general contractor to provide a safe work place for workers at a construction site. The Court of Appeals has held that an implicit precondition to this duty is that the party charged with responsibility have the authority to control the activity bringing about the injury (Comes v New York State Elec.& Gas Corp., 82 NY2d 876, 877). The Court of Appeals stated that where the alleged dangerous condition arises from the contractor’s methods and the owner does not exercise supervising control, no liability will attach to the owner (id.). Here, there has been no showing of the level of supervisory control by defendant sufficient to impose liability under Labor Law § 200 (see Lombardi v Stout, 80 NY2d 290, 295; O’Connor v Spencer (1997) Inv. Ltd. Partnership, 2 AD3d 513). General supervisory authority for purposes of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see Toefer v Long Is. R.R., 308 AD2d 579; Alexandre v City of New York, 300 AD2d 263). Accordingly, there is no basis for finding an appearance of merit as to this alleged claim.

In sum, the Court finds that having weighed all six factors, claimant’s late claim application is DENIED (see Matter of Gallagher v State of New York, 236 AD2d 400 [claimant did not establish appearance of merit of proposed claim]).


January 31, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Defendants have withdrawn their cross-motion.
[2]. The alleged violation of 12NYCRR 23-1.5 (General responsibility of employers) sets forth general safety standards and is therefore not a proper basis for a Labor Law §241(6) claim (see Sihly v New York City Tr. Auth., 282 AD2d 337).