New York State Court of Claims

New York State Court of Claims

ZELNO v. STATE OF NEW YORK, #2006-015-144, Claim No. NONE, Motion No. M-72218


Synopsis


Movant's application for late claim relief was granted with respect to his proposed Labor Law § 240 (1) claim but denied as to his proposed causes of action under Labor Law § 241 (6), 200 and common law negligence.

Case Information

UID:
2006-015-144
Claimant(s):
CARLTON W. ZELNO
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
ZELNO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72218
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Martin, Harding & Mazzotti LLPBy: Craig A. Cushing, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's application for late claim relief is granted with respect to his Labor Law § 240 cause of action on the condition that a claim complying with the requirements of Court of Claims Act § 11 (b) (including the total sum claimed) is filed and served within 30 days of the date of filing of the decision and order herein. Movant's application to file a late claim alleging causes of action for negligence and violations of Labor Law § § 200 and 241(6) is denied. The proposed claim alleges causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241(6) arising out of injuries allegedly sustained by the movant on September 22, 2005 during the course of a construction project at the State Capitol building in Albany. It is alleged, further, that the State of New York entered into a contract with Titan Roofing, Inc. ("Titan") for the renovation of the Capitol building and that Titan entered into a subcontract with movant's employer Monaco Restorations, Inc. ("Monaco") to perform construction on the roof of the building. At the time of the accident employees of Monaco were setting square stones, weighing as much as 3,600 pounds, on the roof of the building with the use of a crane. The stones were secured to the crane by straps and cables. As alleged in the proposed claim submitted in support of the motion, the accident occurred after the straps and cables were unhooked from a stone and the operator began to lower the crane at which point one of the straps became caught on the stone and began to pull the stone off the building. Two of the movant's co-workers on the roof screamed to warn the workers who were on a scaffold directly below the area of the falling stone. Movant was among the workers on the scaffold and alleges that he was knocked down and trampled by his co-workers as they attempted to flee the area. Although the stone slid down the roof of the building it came to rest in a granite gutter and therefore did not come in physical contact with either the movant or the scaffolding.

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 first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since the proposed claim asserts a claim for personal injuries, the three year Statute of Limitations set forth in CPLR § 214 applies. Movant's motion is therefore timely.

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 nor 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 excuse advanced by movant for the failure to timely serve and file a claim is his ignorance of applicable legal requirements. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16) and this factor weighs against granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The movant submitted in support of his motion internal correspondence from the State of New York which reflects its awareness of the incident within minutes after it allegedly occurred. The first correspondence, sent by e-mail on September 22, 2005 at 9:19 a.m. to 12 State employees states, in part, "I have just been informed that a large stone fell from the roof of the Capitol. The stone did not hit anyone, but in the rush of people to get out of the way and (sic) older gentleman was knocked over and trampled. He is conscious and 9-1-1 has been contacted." Further e-mail correspondence on the day of the accident reflects that the stone was accidently "snagged' by one of the cranes and that the job would be temporarily shut down pending a safety review with the contractor. Also submitted in support of the motion was a letter from Angelo DeSimone, Titan's Safety Director, dated September 26, 2005, to the State Office of General Services indicating that the accident was the result of human error on the part of one of Monaco's employees. As reflected in the letter, Mr. DeSimone was of the opinion that the Monaco employee on the roof should not have given the signal to remove the hoist before confirming that the slings and cables were detached from the stone. The foregoing facts demonstrate that the State had prompt notice of the incident and an opportunity to investigate the facts underlying the claim thereby obviating any prejudice to the State arising from movant's delay (Matter of Lockwood v State of New York, 267 AD2d 832).
These factors support the granting of late claim relief.
With respect to the required showing of merit, a claim is sufficiently established if the movant demonstrates "that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists"( Fowx v State of New York, 12 Misc 3d 1184(A); see also, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The Court of Appeals made clear in Narducci v Manhasset Bay Assoc., 96 NY2d 259 that in order to prevail on a Labor Law § 240(1) claim in a falling object case, more must be shown than simply that an object fell causing injury to a worker. "A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id. at 268 [citations omitted]) . Here, the movant's Labor Law § 240(1) claim is premised on the contention that the stone which fell was improperly hoisted and secured. The fact that the stone did not strike the movant does not necessarily foreclose the imposition of liability under Labor Law § 240(1). "For the statute to apply, a worker need not be injured by a falling object actually striking him. It is enough that the injury was a 'foreseeable consequence of defendants' failure to provide and place a proper protective device where one was called for'" (Kollbeck v 417 FS Realty, 4 AD3d 314 [quoting Sasso v NYMED, Inc., 238 AD2d 799, 800] ). In the Court's view, the movant has established the threshold of proof required to establish the potential merit of his Labor Law § 240(1) claim.

A contrary conclusion is reached, however, with respect to the movant's causes of action under Labor Law §§ 241(6), 200 and common law negligence. In support of his cause of action under Labor Law § 241(6), movant alleges violations of Industrial Code regulations 12 NYCRR § 23-1.7(a)(1) and 12 NYCRR § 23-5.1(i) pertaining to the requirement of overhead protection. In order to sustain a cause of action under Labor Law § 241(6) it must be shown that the movant's injuries were proximately caused by a violation of a specific Industrial Code regulation (see Biafora v City of New York, 27 AD3d 506; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494). Inasmuch as the stone did not actually fall from the roof, it cannot be concluded that the overhead protection which the State allegedly failed to provide was a proximate cause of the movant's injuries. As a result, movant failed to establish the merit of this cause of action.

Similarly, the movant failed to establish the merit of his Labor Law § 200 and common law negligence causes of action. It is well-settled that Labor Law § 200 is a codification of the common law duty of a landowner to provide workers with a reasonably safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290). Where the alleged defect or dangerous condition arises from a contractor’s methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law § 200 attaches (see Comes v New York State Electric & Gas Corp., 82 NY2d 876; Lombardi v Stout, 80 NY2d 290). Here, the movant's conclusory assertion that discovery may unearth some evidence of the State's supervision over the manner in which the work was performed is insufficient to support the claim ( Matter of Sabovic v State of New York, 229 AD2d 586). Late claim relief is therefore denied with respect to the movant's proposed Labor Law § 200 and common law negligence causes of action.

Regarding the existence of an alternative remedy, movant readily admits the availability of Workers' Compensation. No mention has been made, however, of whether or not an action against Titan has been or will be commenced. While this final factor weighs against the movant, it is not determinative (see Matter of Lockwood v State of New York, 267 AD2d 832).

Consideration of all of the statutory factors persuades this Court to grant late claim relief

with respect to the movant's Labor Law § 240(1) cause of action. Movant is hereby permitted to file a verified claim based only upon an alleged violation of Labor Law § 240(1) and to serve a copy of the claim as provided in Court of Claims Act § 11(a)(i) within 30 days of filing of a copy of this decision.


December 21, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 25, 2006;
  2. Affidavit of Carlton Zelno sworn to August 21, 2006 with exhibit;
  3. "Affidavit" of Craig A. Cushing, Esquire dated August 21, 2006 with exhibits;
  4. Memorandum of law of Craig A. Cushing dated August 22, 2006;
  5. Affirmation of Saul Aronson dated September 6, 2006;
  6. "Affidavit" of Craig A. Cushing dated September 26, 2006.