New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK, #2008-033-319, Claim No. 113222, Motion No. M-75357


Synopsis



Case Information

UID:
2008-033-319
Claimant(s):
HAROLD HUNTER
Claimant short name:
HUNTER
Footnote (claimant name) :

Defendant(s):
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) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113222
Motion number(s):
M-75357
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Sacks and Sacks, LLPBy: Lyaman F. Khashmati, Esq.
Defendant’s attorney:
John T. Ryan & AssociatesBy: Robert F. Horvat, Esq.
Third-party defendant’s attorney:

Signature date:
December 23, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 claim.[2] 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.[3] 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, 280,[4] 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 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724[1992]).

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 New York, 78 AD2d 767). Obviously, the description of the location in this case[5] 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 dismissal.

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 NY2d 525).

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 court held
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 §23-1.4 as
[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 Section 200.

Based upon the foregoing, defendant’s motion is granted and the Claim is dismissed.

December 23, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims



[2].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.
[3].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.
[4].Kolnacki was effectively reversed by legislation, however, the reasoning of the Court of Appeals applies to other aspects of Court of Claims Act §11(b).
[5].The description of the location in this claim was the same as in the motion for a late claim.