New York State Court of Claims

New York State Court of Claims

GARVILLA v. NEW YORK STATE THRUWAY AUTHORITY, #2007-010-039, Claim No. NONE, Motion No. M-73365


Claimant’s late claim application is denied. [Labor Law §§200, 240(1), 241(6)].

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 17, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on movant’s late claim application:[1]
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits, Memorandum of Law.......................................................................................................................1

Defendant’s Affirmation in Opposition and Exhibit.................................................2

The proposed claim alleges that on May 17, 2006, movant was employed by Pike Structural Services which had contracted to perform work on a salt barn on the Newburgh Exit of the New York State Thruway (Ex. A). At approximately 10:15 a.m., in the course of his employment, movant was “stripping the concrete on scaffolding” (Ex. A, ¶2). Movant’s affidavit states:
“[a]t the time of the accident, I took a few steps backwards when my left leg caught the pin of a batter-board. I was spun around to my right and I attempted to lift my right foot over the two by four. However, my right foot hit the two by four and I fell over. I then landed on my right shoulder, which caused injury.”

(Ex. B, ¶ 4). According to movant’s affidavit, the batter-board was used to facilitate proper alignment of the concrete walls which had been completed a week before movant’s accident (Ex. B, ¶ 5) and therefore the batter-board should have been removed because it was no longer needed. While the proposed claim alleges negligence on the part of the Thruway Authority, movant’s affidavit states that the batter-board “was installed by my employer” (id.). Movant’s employer is Pike Structural Services and not the Thruway Authority. The proposed claim also alleges violations of Labor Law §§200, 240(1) and 241(6). In support of his application, movant submits a New York State Thruway Authority (Thruway Authority) Construction Bureau Initial Notification of Work Zone Accident - Form A (Ex. C) and an Empire State Regional Council of Carpenters, Local 19, Shop Stewards Report on Job Accidents (Ex. D).

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 Court has considered the above six factors. Movant’s purported excuse for his delay is that he “worked full time on light duty in order to support himself” and he has been “focused on his recovery” (Attorney’s Supporting Affirmation, ¶ 3; Ex. B, ¶ 8). This is not a valid excuse for the delay (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [error in filing claim against wrong party was not excusable for delay]; Quilliam v State of New York, 282 AD2d 590 [movant failed to submit medical proof that delay was due to his incapacity]). It is also noted that movant 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).

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. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the 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). A general allegation of negligence is insufficient to establish a meritorious cause of action (see Witko v State of New York, 212 AD2d 889, 891). Here, the proposed claim is not adequately detailed (see Anderson v City Univ. of New York, 8 AD3d 413 [late claim application denied where movant failed to adequately set forth facts demonstrating claim had appearance of merit]).

For example, the Labor Law § 241(6) claim fails to specify any provisions of the Industrial Code upon which this cause of action is premised (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). To the extent that the Labor Law §241(6) claim may be construed to be based upon 12 NYCRR 23-1.7(e) Tripping and other hazards, it does not have an appearance of merit as the batter-board which allegedly caused movant to trip was not a tripping hazard, as contemplated by 12 NYCRR 23-1.7(e), but rather an integral part of the work being performed and therefore cannot support a claim based on this section (see O’Sullivan v IDI Const. Co., Inc., 7 NY3d 805 [Labor Law §241(6) claim based on 12 NYCRR 23-1.7(e)(1) and (e)(2) failed because electrical pipe that that worker tripped over was “an integral part of the construction”]; Castillo v Starrett City Inc., 4 AD3d 320, 322 [Section 23-1.7(e)(2) inapplicable because worker installing insulation tripped on piece of insulation which was “an integral part of the work he was performing”]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [Section 23-1.7(e)(2) was inapplicable because demolition debris created by plaintiff and co-workers was “an integral part of the work being performed”]; Sharrow v Dick Corp., 233 AD2d 858 [iron worker tripped on tubular extension attached to hoist; hoist held to be an integral part of work being performed]). Accordingly, there is an insufficient showing of an appearance of merit to establish that defendant is the party responsible for any violation of the Industrial Code and that such violation was a proximate cause of the accident.

With regard to the Labor Law §240(1) claim, movant fails to allege sufficient facts or submit any other evidence to establish that he suffered injury as a result of an elevation-related risk covered by the statute. Labor Law §240(1) was intended to apply in cases where there are “risks related to elevation differentials” because of the special hazards in having to perform work under such conditions (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). Here, there is no allegation that movant was working at an elevation (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 269 [“Nor does the fact that plaintiff was working at an elevation bring this scenario within the ambit of Labor Law §240(1)”]; D’Avila v City of New York, 205 AD2d 729 [crane operator killed when a subway train crashed into the crane and he fell from the crane to the tracks; Second Department held § 240(1) inapplicable because improper placement of crane only risked a collision with an oncoming train, not an elevation related risk]) and merely because a scaffold is a device covered by Labor Law § 240(1) does not establish that movant has established the appearance of merit of a claim under the statute (see Smith v New York State Elec. & Gas Corp., 82 NY2d 781 [the mere fact that a crane may fall within § 240(1) under "other devices" does not establish that any accident involving a crane results in an elevation related risk injury warranting recovery under § 240(1)]; Thompson v Ludovico, 246 AD2d 642 [defendant granted summary judgment dismissing claim because crane worker, who was allegedly injured when boom slipped and crushed his arm, failed to establish a prima facie case that Labor Law §240(1) was violated in an elevated related accident; rather, the risk posed was usual and ordinary at a construction site]).

There is also a lack of an appearance of merit of the cause of action 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 cause of action.

Finally, it has been found that prejudice is more likely to result in cases like this one where the potential claim arose under 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]). Additionally, movant has failed to submit any medical records substantiating his injuries and connecting them to any negligence on the part of defendant (see Anderson v City Univ. of New York, supra at 414 [late claim application denied where movant did not connect injuries to any negligence of defendant]).

In sum, upon weighing all of the relevant factors, movant’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]).

August 17, 2007
White Plains, New York

Judge of the Court of Claims

[1].Movant previously brought a late claim application against the State of New York (Motion No. M-72775) based upon the same incident. That motion was DENIED by Decision and Order filed-stamped April 20, 2007 on the ground that the State of New York was not a proper party defendant.