New York State Court of Claims

New York State Court of Claims

SOVEY v. THE STATE OF NEW YORK, #2007-015-207, Claim No. NONE, Motion No. M-73153


Late claim relief was granted with regard to movant's proposed causes of action pursuant to Labor Law § 240 (1) and § 241 (6) and denied with respect to the proposed negligence and Labor Law § 200 causes of action.

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):

Claimant’s attorney:
Poissant, Nichols, Grue & Vanier, P.C.By: Thomas A. Grue, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief is granted with respect to his Labor Law § § 240(1) and 241(6) causes of action and denied with respect to his causes of action for negligence and violation of Labor Law § 200. 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 November 16, 2006 during the course of a construction project at Camp Gabriels Correctional Facility ("Camp Gabriels"). Movant alleges that he was employed as a roofer by Midstate Industries ("Midstate") which was hired to replace a roof at the prison facility. According to the movant's affidavit submitted in support of the motion, a man-lift was used at the work site to transport tools and personnel from the ground level to the roof. At the end of the work day the movant was on the ground putting away tools. Three Midstate employees were in the "basket" of the man-lift with three planks placed on the upper rail of the basket. Movant describes the accident in his affidavit as follows:
6) I noticed that an employee was on the ground and that the planks had begun to fall from the man lift from a height of approximately eight to ten feet in the air in the direction of the employee. I moved in his direction to push him out of the way and was struck by the planks myself. The planks were approximately twelve inches wide, by twenty-two feet long. Two of the planks struck me and knocked me down to the ground. My hand was out stretched at the time and the third plank fell striking the middle finger of my right hand.

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, having been made well within this time frame.

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 [1994]), and the statutory factors are not exhaustive nor one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). 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 [1993]).

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 [1999]) 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 an affidavit of Tommy Glover, a foreman on the construction site. Mr. Glover states that the State was immediately aware of the accident because he personally reported it to the main office at Camp Gabriels on the date it occurred. In addition, on the day following the accident, the Office of General Services had an inspector on the site by the name of Chuck Wright. Mr. Glover states in his affidavit that Mr. Wright "noted the incident and I believe prepared an incident report". Mr. Glover also avers that a guard with authority to stop the work was assigned to watch the work crew throughout the day. Additionally, the movant states in his affidavit that he overheard the guard report the injury to someone in the main office and describe how the injury occurred.

In opposition to this aspect of the motion, the State points out that the movant failed to submit an accident report and without this documentation there is insufficient evidence to conclude that the State had an opportunity to conduct an investigation. Notably, the State does not deny the existence of an accident report and movant's counsel makes the point that further delay in filing this motion pending the receipt of the report was deemed unwise.

The foregoing facts demonstrate that the State had prompt notice of the incident and an opportunity to investigate thereby obviating any prejudice to the State from movant's delay (Lockwood v State of New York, 267 AD2d 832 [1999]). These factors support the granting of late claim relief.

With respect to the required showing of merit, the 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]).

Labor Law § 240 (1) imposes a nondelegable duty on owners and contractors to "furnish or erect, or cause to be furnished or erected...scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to [construction workers employed on the premises]" (Labor Law § 240 [1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Unlike Labor Law § 241(6), the statutory requirements of Labor Law § 240 (1) are self-executing in the sense that they may be implemented without reference to external standards or rules (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 503). In Narducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]) the Court of Appeals made clear that in order to prevail in a falling object case under Labor Law § 240 (1) "[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 planks which fell were improperly hoisted and secured. In the Court's view, the movant has met the minimum threshold of proof required to establish the potential merit of his Labor Law § 240(1) cause of action.

Unlike Labor Law § 240 (1), Labor Law § 241 (6) is not self-executing and to impose liability under this statute it must be shown that the movant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or concrete specification (see Ross v Curtis-Palmer Hydro-Elec.Co., supra; Berg v Albany Ladder Co., Inc., 40 AD3d 1282 [2007]). Among the regulations the movant relies upon to support his Labor Law § 241 (6) cause of action is 12 NYCRR 23-9.6 (e), which provides in pertinent part the following:
(e) Aerial basket operation.


(9) While persons are in the elevated basket, persons on the ground or grade level shall not enter the area directly beneath such basket except when required by the persons in the basket.

This regulation mandates compliance with specific commands sufficient to support a Labor Law § 241(6) cause of action (Greenough v Niagara Mohawk Power Corp., 13 AD3d 1160 [2004], rearg denied 16 AD3d 1181 [2005])[1]. The movant has established the threshold of proof required to establish the potential merit of his Labor Law § 241(6) cause 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 [1978]). 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 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]). Here, the movant has failed to support his negligence and Labor Law § 200 causes of action with any evidence that the State exercised supervisory control over the work. The allegation that the guard on duty had authority to stop the work is insufficient, standing alone, to support these proposed causes of action (Custer v Cortland Hous. Auth., 266 AD2d 619 [1999], lv denied 94 NY2d 761 [2000]). Movant failed to establish even the appearance of merit with respect to the his proposed common law negligence and Labor Law § 200 causes of action.

Regarding the existence of an alternative remedy, claimant readily admits the availability

of workers' compensation. While this final factor weighs against the movant, it is not determinative (see Lockwood v State of New York, 267 AD2d 832 [1999]).

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) and 241(6) causes of action. Movant is hereby permitted to file and serve a verified claim based only upon the alleged violations of Labor Law § § 240(1) and 241(6) within 30 days of filing of a copy of this decision.

June 26, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 30, 2007;
  2. Affirmation of Thomas A. Grue dated March 30, 2007 with exhibits;
  3. Affidavit of John Sovey sworn to March 30, 2007;
  4. Affidavit of Tommy Glover sworn to March 30, 2007;
  5. Affidavit of Michael C. Rizzo sworn to April 6, 2007;
  6. Reply affirmation of Thomas A. Grue dated April 12, 2007.

[1]. No conclusion is reached with respect to whether the other Industrial Code regulations cited in the proposed claim are sufficiently specific to support a Labor Law § 241(6) cause of action.