HUNTER v. THE STATE OF NEW YORK, #2008-033-319, Claim No. 113222, Motion No.
Footnote (claimant name)
THE STATE OF NEW YORK1 1.The Court is omitting “New York State Thruway Authority” from the caption as it is improper. The Claim was properly filed as The State of New York as the only properly named Defendant.
Footnote (defendant name)
James J. Lack
Sacks and Sacks, LLPBy: Lyaman F. Khashmati, Esq.
John T. Ryan &
AssociatesBy: Robert F. Horvat, Esq.
December 23, 2008
See also (multicaptioned
This is a claim brought by Harold Hunter (hereinafter "claimant") due to the
alleged negligence of the defendant, the State of New York (hereinafter
“State”). According to the claim, the alleged negligence occurred
on September 13, 2006, on the Northern State Parkway near the Hicksville Road
exit in the County of Nassau, State of New York. The claim alleges claimant
fell from a flatbed truck while removing branches and leaves to install roadway
signs and guardrails. The claim alleges causes of action pursuant to Labor Law
§§200, 240(1) and 241(6).
Defendant moves for summary judgment to dismiss the
In addition to its arguments
concerning the Labor Law causes of action, defendant points to several defects
in the claim as plead. First, the accident occurred on September 13, 2005, not
on September 13, 2006.
The claim indicates
that the accident occurred on the Northern State Parkway, near its intersection
with Hicksville Road. The accident actually occurred on Hicksville Road, near
its intersection with the Southern State Parkway. Lastly, claimant did not fall
off of the truck. Claimant fell on the truck as he was getting onto the back of
the truck. Claimant was not at the accident site to install signs, rather he
was there to assist in trimming branches which were obscuring signs.
In Kolnacki v State of New York
, 8 NY3d 277,
the Court of Appeals stated
Under section 8 of the Court of Claims Act, the State has waived its sovereign
immunity from liability "provided the claimant complies with the limitations of
this article [§§ 8-12]." The Act contains several conditions that
must be met in order to assert a claim against the State. Specifically, "[t]he
claim shall state the time when and place where such claim arose, the nature of
same, and the items of damage or injuries claimed to have been sustained and the
total sum claimed" (Court of Claims Act § 11 [b] [emphasis supplied]).
" '[B]ecause suits against the State are allowed only by the State's waiver of
sovereign immunity and in derogation of the common law, statutory requirements
conditioning suit must be strictly construed' " (Lichtenstein v State of New
York, 93 NY2d 911, 913 , quoting Dreger v New York State Thruway
Auth., 81 NY2d 721, 724).
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lepkowski v State of New York, 1 NY3d 201;
Kolnacki v State of New York, 8 NY3d 277; Lurie v State of New York,
73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these
requirements is to give the State prompt notice of an occurrence and an
opportunity to investigate the facts and prepare a defense. Failure to meet the
requirements of Court of Claims Act §11(b) deprives the Court of subject
matter jurisdiction which can be raised at any time, even if not plead in the
answer or a pre-answer motion (Finnerty v New York State Thruway Auth.,
75 NY2d 721; Knight v State of New York, 177 Misc 2d 181).
The Court recognizes that the defects are jurisdictional in nature and cannot
be cured by an amendment (Grande v State of New York, 160 Misc 2d 383).
Claimant does not address the errors in the claim in his opposition papers.
The Court cannot accept that the mistake in the date is a typographical error.
The correct date was used in the motion for a late claim and the mistake is
repeated in several places within the claim. Surely, a claimant seeking
compensation would either recall the date he was injured correctly and carefully
proofread his claim before verifying it. In addition, the area where the
accident occurred is miles from where the claim states it occurred.
In testing the specificity of a claim, it must be specific enough so as not to
mislead, deceive or prejudice the rights of the defendant (Heisler v State of
, 78 AD2d 767). Obviously, the description of the location in this
severely misled and prejudiced defendant
in its ability to investigate. As the defendant may raise the lack of subject
matter jurisdiction at any time the Court dismisses the claim on its own motion
(Dependable Trucking Co. v New York State Thruway Auth.
, 41 AD2d 985), as
it would be a waste of judicial resource to continue with a claim bound for
The Court does not reach a different conclusion when it considers the motion
for summary judgment.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v
Scally, 99 AD2d 713). The Court's function is to determine if an issue
exists. In doing so, the Court must examine the proof in a light most favorable
to the party opposing the motion. Summary judgment may only be granted if
movant provides evidentiary proof in admissible form to demonstrate that there
are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the
movant has demonstrated a prima facie entitlement to summary judgment as a
matter of law, the burden shifts to the opposing party to submit evidentiary
proof in admissible form sufficient to create an issue of fact or demonstrate an
acceptable excuse for his failure to submit such proof (Alvarez v Prospect
Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope
are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77
From the evidence presented to the Court, it is clear that no significant issue
of fact exists as to the circumstances of this accident. The evidence before
the Court clearly establishes that while defendant’s employee was present
at the accident location, he had no supervisory control over claimant or
claimant’s co-workers. The Court accepts that defendant had no knowledge
of a dangerous condition since the truck was not owned by defendant and
defendant’s employee had not looked at the flatbed area of the truck
(see Lombardi v Stout, 80 NY2d 290).
Claimant withdrew his cause of action pursuant to Labor Law §240(1)
[¶23 of claimant’s Affirmation in Opposition].
Labor Law §241(6) states
All contractors and owners and their agents, except owners of one and two-family
dwellings who contract for but do not direct or control the work, when
constructing or demolishing buildings or doing any excavating in connection
therewith, shall comply with the following requirements:
6. All areas in which construction, excavation or demolition work is being
performed shall be so constructed, shored, equipped, guarded, arranged, operated
and conducted as to provide reasonable and adequate protection and safety to the
persons employed therein or lawfully frequenting such places. The commissioner
may make rules to carry into effect the provisions of this subdivision, and the
owners and contractors and their agents for such work, except owners of one and
two-family dwellings who contract for but do not direct or control the work,
shall comply therewith.
In Rizzuto v L.A. Wenger Contracting Co. Inc., 91 NY2d 343, 348, the
Labor Law 241 (6), by its very terms, imposes a nondelegable duty of reasonable
care upon owners and contractors "to provide reasonable and adequate protection
and safety" to persons employed in, or lawfully frequenting, all areas in which
construction, excavation or demolition work is being performed (see also,
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Long v
Forest-Fehlhaber, 55 NY2d 154, 160, rearg denied 56 NY2d 805;
Allen v Cloutier Constr. Corp., 44 NY2d 290, 299-300, rearg denied
45 NY2d 776). Indeed, the history underlying section 241, as amended,
clearly manifests the legislative intent to place the "ultimate responsibility
for safety practices at building construction jobs where such responsibility
actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at
407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44
NY2d, at 300, supra).
According to the statute and Rizzuto, in order to establish liability,
the injured party must be engaged in work enumerated in the statute.
Construction work, for purposes of Labor Law §241(6) is defined in 12 NYCRR
[a]ll work of the type performed in the construction, erection, alteration,
repair, maintenance, painting or moving of buildings or other structures,
whether or not such work is performed in proximate relation to a specific
building or other structure and includes, by way of illustration but not by way
of limitation, the work of hoisting, land clearing, earth moving, grading,
excavating, trenching, pipe and conduit laying, road and bridge construction,
concreting, cleaning of the exterior surfaces including windows of any building
or other structure under construction, equipment installation and the structural
installation of wood, metal, glass, plastic, masonry and other building
materials in any form or for any purpose.
Claimant was engaged in the process of trimming tree branches to improve the
visibility of signs adjacent to the roadway. This work is not protected within
the meaning of Labor Law §241(6).
The Court also grants defendant’s summary judgment motion as to Labor Law
Based upon the foregoing, defendant’s motion is granted and the Claim is
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
.The following papers were read and considered
on defendant’s motion: Notice of Motion dated August 7, 2008 and filed
August 11, 2008; Affirmation of Robert F. Horvat, Esq. with annexed Exhibits A-H
dated August 7, 2008 and filed August 11, 2008; Affirmation in Opposition of
Lyaman F. Khashmati, Esq. with annexed Exhibits 1-8 dated September 17, 2008 and
filed September 19, 2008; Memorandum of Law of Lyaman F. Khashmati, Esq.
received September 19, 2008; Affirmation of Robert F. Horvat, Esq. dated
September 27, 2008 and filed October 2, 2008.
.Claimant received permission to file this
claim pursuant to Court of Claims Act §10(6) (M-71943). In the original
papers, claimant stated that the accident occurred on September 13, 2005.
was effectively reversed by
legislation, however, the reasoning of the Court of Appeals applies to other
aspects of Court of Claims Act §11(b).
.The description of the location in this claim
was the same as in the motion for a late claim.