New York State Court of Claims

New York State Court of Claims

SHANAHAN v. THE STATE OF NEW YORK, #2007-040-026, , Motion No. M-72829


Synopsis


Motion to late file granted as to Labor Law §§ 200 & 241(6) causes of action and denied as to § 240(1).

Case Information

UID:
2007-040-026
Claimant(s):
JAMES SHANAHAN, JR.
Claimant short name:
SHANAHAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72829
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
ZALMAN & SCHNURMANBy: Marc H. Miner, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Todd A. Schall, Esq.
Third-party defendant’s attorney:

Signature date:
May 15, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act §10(6) is granted.

The proposed claim, attached to the motion papers as Exhibit A, alleges that on September 21, 2006 at 3:00 AM, Movant was an employee of Conti Enterprises, Inc. a/k/a Conti of New York LLC when he was struck “on the head and neck by the hook(s) from a crane” (proposed claim, ¶ 5). It is further alleged that Movant was working at the Duffy Avenue Converter Station in Hicksville and that the State of New York is the owner of the subject location. It is asserted that the State was negligent in: failing to provide a safe place to work; failing to provide adequate lighting resulting in the crane operator not being able to see; failing to properly train workers; allowing the crane operator to operate the crane in a negligent manner; failing to take adequate safety precautions; and failing to provide proper scaffolding and other safety devices at the site. It is further asserted that specified sections of the Industrial Code were violated. The proposed claim asserts that the State violated Labor Law §§ 200, 240(1) and 241(6). The period for timely filing of either a claim or notice of intention to file a claim in connection with this accident pursuant to Court of Claims Act § 10(3) expired on December 20, 2006. Movant’s application was filed with the Clerk of the Court on January 16, 2007.

In determining whether to grant a motion to file a late claim, Subdivision 6 of Section 10 of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036). The Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts ignorance of the Court’s filing requirements and of the fact that the property was owned by the State. This is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756; Fowx v State of New York, 12 Misc 3d 1184[A] [2006 NY Slip Op 51399U]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. In opposition to the motion, the State has submitted the affirmation of Assistant Attorney General Todd A. Schall. He asserts that the Movant has not established that Defendant “was adequately placed on notice of the existence of the claim” (Schall Affirmation, ¶ 16). He also asserts that the State will be substantially prejudiced if the claim were allowed to proceed. He further asserts that part of the prejudice results from the State’s possible inability to pursue indemnification from the contractor’s insurer because of Movant’s “failure to provide timely notice of the loss” (Schall Affirmation, ¶ 22). Finally, he asserts that Defendant has been deprived of the opportunity to conduct a prompt and meaningful investigation while the facts are still recent (Schall Affirmation, ¶ 36).

The State has not submitted any documents or an affidavit, however, from an employee to establish that the State did not have notice of the facts or an opportunity to investigate the matter (see Calzada v State of New York, 121 AD2d 988, 989; Fowx v State of New York, supra). The statute only requires that the Court consider whether the State had an opportunity to investigate the matter, not whether the State did indeed perform an investigation. Movant submitted a copy of an Incident/Accident Report, dated September 21, 2006, relating to the instant accident (see Ex. C attached to motion). He also asserts that a Workers’ Compensation claim was filed and that the insurer for Movant’s employer may have been contractually obligated to defend and indemnify the State (Shanahan Affidavit, ¶¶ 8-9; Affirmation of Marc H. Miner, ¶ 10). The Court finds that the State may have had an opportunity to investigate. Despite Defendant’s speculative and conclusory assertion that the State will be prejudiced by the delay in filing a claim, the Court cannot determine, based upon the evidence submitted on this motion, that the State will be substantially prejudiced as set forth in Court of Claims Act § 10(6), especially since Movant’s Notice of Motion was filed within several weeks of the statutory time limit. Therefore, the Court finds that these three factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. Although it appears that Movant may have an alternate remedy in Workers’ Compensation benefits, it is only a partial remedy and is not sufficient to bar the relief requested pursuant to Court of Claims Act § 10(6) (Rosenhack v State of New York, 112 Misc 2d 967, 969).

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255; Prusack v State of New York, 117 AD2d 729, 730; Rosenhack v State of New York, supra at 968; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

Labor Law § 200 is a codification of the common law duty imposed upon an owner or contractor to exercise reasonable care to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877) . However, a distinction has been drawn between those cases in which an injury is caused by a defective condition of the premises and those in which the injury results from defective equipment or its operation (Miller v Wilmorite, Inc., 231 AD2d 843). Liability for an injury resulting from a dangerous condition at the work site may be imposed on the owner where the owner either exercised supervision and control over the work or had actual or constructive notice of the unsafe condition on the premises (Kerins v Vassar College, 15 AD3d 623, 625-626; Abayev v Jaypson Jewelry Mfg. Corp., 2 AD 3d 548, 549; Blanco v Oliveri, 304 AD2d 599; Higgins v 1790 Broadway Assoc., 261 AD2d 223, 225). If, on the other hand, the injury results from defective equipment or its operation, rather than a defect in the premises, then Movant must demonstrate that the party to be charged with the duty exercised some degree of supervision or control over the activity that brought about the injury before liability will attach (Rizzuto v L.A. Wenger Contr. Co., supra; Comes v New York State Elec. & Gas Corp., supra; Lombardi v Stout, 80 NY2d 290, 295). There can be no liability under this statute for the negligent acts of others over whom the owner had no direction or control (Lombardi v Stout, supra; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). The proposed claim alleges that the injury to Movant was the result of the improper operation of the crane. The proposed claim and supporting papers do not allege that the State exercised control or supervision over the crane operator. Movant avers in his affidavit in support, however, that the work site had poor lighting conditions and that there were numerous complaints that the lights were creating a glare, making it difficult for the crane operators to see (Shanahan Affidavit, ¶ 5). A Workers’ Compensation claim also was filed (id., ¶ 9). Finally, it is alleged that the site is shared by the New York State Department of Transportation (Miner Affirmation, ¶ 3). Thus, there are suggestions that the State may have had notice of the alleged unsafe condition at the work site that caused the accident. If proved at trial, this allegation could bring the Defendant within the ambit of Labor Law § 200. Therefore, the Court finds that Movant has alleged at least a colorably meritorious claim in regard to Labor Law § 200.

Labor Law § 240(1) applies to both “falling worker” and “falling object” cases (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267). It is aimed only at the special risks associated with elevation-related hazards and not any and all perils that may be connected in some tangential way to the effects of gravity (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501). Here, Movant alleges he was struck in the head and neck by a load being carried by a crane while he was waiting to hook up a load of concrete form products (Shanahan Affidavit, ¶ 4). He does not allege that he was working at an elevation. Likewise, Movant does not allege that the crane hook/stabilizer ball fell on him from a height, let alone that it fell while being hoisted or secured because of the absence or inadequacy of a safety device. Therefore, the Court concludes that Movant has failed to establish that this cause of action has the appearance of merit.

Turning to the Labor Law § 241(6) cause of action, a claimant asserting such a cause of action must allege a violation of a specific provision of the Industrial Code (see Comes v New York State Elec. & Gas Corp., supra at 878; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 851). Here, the proposed claim asserts that various specified sections of the Industrial Code were violated. The Court concludes that this cause of action has the appearance of merit.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor for the causes of action alleging a violation of Labor Law §§ 200 and 241(6), but not § 240(1). The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989; Plate v State of New York, 92 Misc 2d 1033, 1036). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within thirty (30) days of the date of filing of this decision and order, Movant shall file with the Clerk of the Court his proposed claim against the State asserting violations of Labor Law §§ 200 and 241(6) only, and serve a copy of the proposed claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

May 15, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movant’s application for permission to file a late claim:

Papers Numbered

Notice of Motion, Affirmation,
Affidavit & Exhibits Attached 1


Affirmation in Opposition &
Exhibits Attached 2

Reply Affirmation 3