New York State Court of Claims

New York State Court of Claims

GASCHEL v. THE STATE OF NEW YORK, #2008-015-002, Claim No. NONE, Motion No. M-73996


Late claim relief was granted where claimant allegedly fell from scaffold while performing work on the State Capitol building in Albany, New York.

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:
Steven M. Melley, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2008
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

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 asserts causes of action for negligence and violations of Labor Law

§ § 200, 240 (1), 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, New York. Movant alleges 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 his employer Monaco Restorations, Inc. ("Monaco") for the performance of work. The proposed claim states that the scaffold upon which the movant was working was "damaged, removed, rendered unstable and otherwise destroyed by falling building materials, to wit; a stone block thereby precipitating him to fall to the ground below . . ." (see proposed claim ¶ 11). Movant submitted an affidavit in which he describes the incident as follows:
On or about the 22nd day of September 2005 I was lawfully upon the premises of the State Capital [sic] Building in Albany, New York and in the course of my employment with Monaco Restorations, Inc. when I was caused to fall from an elevation to the ground below when the scaffold I was working upon was crushed by a large stone block that was in the process of being set on the building by a crane. At the time of the incident, I was working on a scaffold secured to one of the towers of the State Capital [sic] Building when a large stone block fell from above, nearly hitting me and destroying the scaffolding I was on and causing me to fall to the ground below.
In support of the motion, movant submitted copies of e-mails from employees of the New York State Division of Construction, Office of General Services. One of the e-mails, sent on the day of the accident, indicates that on September 22, 2005 "a large square 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 an[] older gentleman was knocked over and trampled." A report dated September 26, 2005 from the Safety Director of Titan Roofing, Inc. to an employee of the New York State Office of General Services indicates that three of Monaco's employees were injured while trying to get out of the way of the stone. According to this report, employees of Monaco were setting square stones, each weighing as much as 3,600 pounds, on the roof of the building with the use of a crane. One of the final stones was set in a bed of concrete mud with two steel pins. Once the stone was stabilized by Monaco employees the slings and cables from the tower crane were released and Steve Miller, an employee of Monaco, signaled the crane operator to retract the cable. However, as the sling was slowly lifting away, it became caught on the stone which then became dislodged. According to the report, Mr. Miller was unable to stop the stone from sliding downward on the roof and screamed to the men below who were on a coffee brake. The men "were scattering about to avoid . . . getting crushed as the stone . . . slid down the tower. The stone had finally stopped at the base of the granite gutter injuring three of Monaco Restoration [sic] workers." The report concludes that the accident was the fault of Steve Miller who "should have had full view of all sides to see that the slings or cables were free before the signal to hoist was given." None of the correspondence submitted in support of the motion reflects that a scaffold was destroyed by a falling stone as alleged in the proposed claim.

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 (5) applies. Movant's motion is therefore timely, having been made within the applicable 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 file and serve a claim is that although he first consulted an attorney within ninety days following the incident, he was not advised of the limited period "for filing a notice of intention against the [S]tate of New York." He indicates that it was not until he contacted his current attorney on February 22, 2006 that he was advised of the time period applicable to the service and filing of a claim in the Court of Claims. Ignorance of the law is not an acceptable excuse for the failure to timely file and serve a claim (Griffin v John Jay Coll., 266 AD2d 16 [1999]). In addition, the movant herein failed to proffer an explanation for his nearly two-year delay in making the instant application after first consulting with his current attorney. This factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. While the movant failed to establish that the State had notice of his accident, which he describes as occurring when a stone destroyed the scaffold upon which he was working thereby causing him to fall to the ground below, the State clearly did have prompt notice of an incident involving a stone being installed on the roof of the Capitol building and injuries to workers on a scaffold during their attempt to flee from the area below the falling stone. As the State makes no claim of prejudice in opposition to the motion, the Court finds 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 "(1) must not be patently groundless, frivolous, or legally defective and, (2) . . . 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, 499 - 500 [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 plaintiff's Labor Law § 240 (1) claim is premised on the contention that the stone fell because of the improper use of a device of the kind enumerated in the statute. 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 Realty, 4 AD3d 314, 314 [2004], quoting Sasso v NYMED, Inc., 238 AD2d 799, 800 [1997]). In the Court's view, the movant has met the minimal threshold of proof required to establish the potential merit of his Labor Law § 240 (1) claim.

Unlike Labor Law § 240 (1), Labor Law § 241(6) is not self-executing and in order 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-Electric Co., supra; Berg v Albany Ladder Co., Inc., 40 AD3d 1282 [2007]). In support of his Labor Law § 241 (6) cause of action, the movant alleges violations of § 23-8.1 (f), § 23-1.7; § 23-2.6 and § 23-1.19. Section 23-8.1 governs the safe operation of "mobile cranes, tower cranes and derricks." Movant first alleges a violation of § 23-8.1 (f) (1) (iv), requiring that: "(1) Before starting to hoist. . . the following inspection for unsafe conditions shall be made. . . (iv) The load is well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches." This section has been held sufficiently specific to support a Labor Law § 241 (6) claim and is arguably applicable to the facts of this case (McCoy v Metropolitan Transp. Auth., 38 AD3d 308 [2007]; Cammon v City of New York, 21 AD3d 196 [2005]; cf. Biafora v City of New York, 27 AD3d 506 [2006]). Likewise, § 23-1.7 pertaining to overhead hazards requires that "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects be provided with suitable overhead protection." This section of the Industrial Code has also been held sufficiently specific to support a Labor Law § 241 (6) claim (see Roosa v Cornell Real Prop. Servicing, Inc., 38 AD3d 1352 [2007], rearg denied 45 AD3d 1423 [2007]; Quinlan v City of New York, 293 AD2d 262 [2002]. Thus, movant's Labor Law § 241 (6) cause of action has at least the appearance of merit based upon alleged violations of the aforementioned sections of the Industrial Code[1].

A contrary conclusion is reached, however, with respect to the movant's causes of action under Labor Law § 200 and for common law negligence. 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 (Comes v. New York State Electric & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]). Here, the movant failed to offer any evidence that the State exercised supervisory control over the manner in which the work was performed. Accordingly, these proposed causes of action appear patently meritless.
With regard to the existence of an alternative remedy, claimant readily admits the availability

of Workers' Compensation and that a lawsuit has been commenced against other contractors in the Supreme Court. 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 a claim based only upon alleged violations of Labor Law § 240 (1) and § 241 (6). The claim shall be filed and a copy thereof shall be served as provided in Court of Claims Act § 11(a)(i) within 30 days of filing of a copy of this decision.

January 9, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 20, 2007;
  2. Memorandum of Law of Steven M. Melley dated September 19, 2007 with exhibits A - F;
  3. Affirmation of Kevan J. Acton dated October 22, 2007;
  4. Reply Affirmation of Jade H. Platania dated November 6, 2007.

[1]. Industrial Code § 23-2.6 and § 23-1.19 do not appear applicable to the facts of this case. Section 23-2.6 requires catch platforms during the construction of masonry walls (see Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207 [2002]). The incident at issue here did not involve construction of masonry walls. Section 23-1.19 provides the specifications for catch platforms "where required by this Part (rule)"; however, the movant points to no rule requiring a catch platform for the type of construction task underway at the time the subject incident allegedly occurred.