7. Defendant’s memorandum of law, dated July 28, 2006. This is the motion
of Avon Richardson for permission to file a late claim pursuant to
§ 10(6) of the Court of Claims Act (“CCA”). In his
proposed claim, Mr. Richardson alleges that he was injured on May 10, 2004 while
disassembling a grandstand section which had been used for graduation ceremonies
at the State University of New York at Geneseo. At the time of the incident,
Claimant was employed by Labor Ready, an employment agency, and assigned to work
for Mountain Productions, Inc., a contractor for the State. According to
Claimant, he was injured when a section of the grandstand, which was being
lifted by a fork lift truck, fell off the fork lift truck and struck Claimant in
the head. In his proposed claim, Mr. Richardson alleges that Defendant is
liable for his injuries pursuant to Labor Law §§ 240(1) and 241(6).
With regard to the proposed § 241(6) cause of action, Claimant asserts that
this cause of action is based upon violations of various subparts of 12 NYCRR
Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an
opportunity to investigate; (5) whether Defendant would be substantially
prejudiced; and (6) whether the claim appears to be meritorious. This list is
not exhaustive and the presence or absence of any one factor is not dispositive.
Rather, the Court in its discretion balances these factors in making its
determination (Bay Terrace Coop. Section IV v New York State
Employees’ Retirement Sys. Policemen’s & Firemen’s
Retirement Sys., 55 NY2d 979).
Claimant alleges that he did not file a claim earlier due to the law office
failure of his previous attorneys. However, such an excuse is not legally
acceptable (see Bommarito v State of New York, 35 AD2d 458;
Plate v State of New York, 92 Misc 2d 1033). I find that this factor
weighs in Defendant’s favor.
Regarding the factor relating to alternative remedies, I note that Claimant has
commenced an action in Supreme Court against Mountain Productions, Inc., and
that the right to receive Workers’ Compensation benefits can serve as an
available remedy (Nicometti v State of New York, 144 AD2d 1036, lv
denied 73 NY2d 710), even though it may be a partial remedy (Matter of
Garguiolo v New York State Thruway Authority, 145 AD2d 915). This factor,
too, weighs in Defendant’s favor.
The next three factors covering notice, opportunity to investigate and
prejudice are closely related and may be considered together (Brewer v State
of New York, 176 Misc 2d 337, 342). Claimant asserts that these factors
weigh in his favor because he was working on a State project at the time of the
incident, and because he filed an accident report at the time of the incident.
Claimant, therefore, asserts that Defendant had all necessary information to
conduct a timely investigation and has not been prejudiced by the delay.
The Defendant, however, argues that it had no notice of the incident until this
motion was filed approximately two years after the incident. Defendant further
asserts that there were no witnesses to the accident and that any investigation
at this point would be meaningless. Defendant does admit that Claimant filed an
accident report on the date of his injury. However, that report neither
indicates anything that would put Defendant on notice of a potential claim, or
even that Claimant was injured by a falling object. The report merely indicates
that Claimant was injured “working on the metal scaffolding.” I
find that each of these three factors weighs in Defendant’s favor.
The final factor to be considered is merit. Of the six enumerated factors in
CCA § 10(6), it is the appearance of merit that is most significant.
It would be pointless to grant permission to file late if the proposed claim did
not have at least the appearance of merit (see e.g. Prusack v State of New
York, 117 AD2d 729). Generally, a proposed claim meets the appearance of
merit standard if it passes a two-fold test. It must not be patently
groundless, frivolous or legally defective and, upon consideration of the entire
record, there must be reasonable cause to believe a valid cause of action exists
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
To have a valid claim under § 241(6), the claimant must cite specific
regulations which set forth specific safety standards to be complied with, as
opposed to more generic regulations which merely restate general safety
standards. Claimant must also demonstrate that the violation was the proximate
cause of his injury (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d
494, at 505). The proposed claim alleges violations of various subparts of 12
NYCRR § 23-6.1. Although 12 NYCRR § 23-6.1 does provide specific
regulations relating to material hoisting equipment, Defendant has correctly
pointed out that this regulation specifically excludes “fork lift
trucks” from its provisions. Claimant has, therefore, failed to
demonstrate a violation of an underlying regulation which would support a cause
of action under Labor Law § 241(6). For this reason, I find that the
proposed cause of action pursuant to Labor Law § 241(6) lacks merit.
With regard to his proposed Labor Law § 240(1) cause of action, Claimant
maintains that he was injured by a falling object that was improperly secured.
Defendant, however, argues that although gravity played a role in
Claimant’s injury, it is not the type of activity that is covered by Labor
Law § 240(1). I agree.
In Malecki v Wal-Mart Stores, Inc. (222 AD2d 1010), the Appellate
Division, Fourth Department, addressed a situation similar to the one at hand.
The plaintiff in Malecki had been injured when a bundle of steel that was
being lifted by a fork lift truck fell and landed on his foot. The Court
determined that the incident was not caused by the “extraordinary
elevation risks” addressed by Labor Law § 240(1), but rather
“the usual and ordinary dangers of a construction site”
(Malecki, at 1010, citing Rodriguez v Tietz Ctr. for Nursing Care,
84 NY2d 841, 843). Similarly in Ruiz v 8600 Roll Road, Inc. (190 AD2d
1030), the Appellate Division, Fourth Department, determined that no action
based upon a violation of Labor Law § 240(1) could be maintained by a
plaintiff who was killed when a steel beam being hoisted by a crane slipped and
struck plaintiff on the head. The Court reasoned that § 240(1) did not
apply because the injuries “were not the result of a fall from an elevated
work site or from an object falling from an elevated work surface . . . ”
(Ruiz at 1031). Accordingly, I find that Claimant has failed to
demonstrate the merit of his proposed Labor Law § 240(1) cause of
Upon reviewing and balancing all of the factors enumerated in CCA § 10(6),
I find that each factor weighs in Defendant’s favor.
Based upon the foregoing, it is
ORDERED, that Claimant’s motion for permission to file a late
Claim is denied.