New York State Court of Claims

New York State Court of Claims

FLOYD v. NEW YORK STATE THRUWAY AUTHORITY, #2008-037-019, Claim No. 105256, Motion No. CM-74103


Synopsis



Case Information

UID:
2008-037-019
Claimant(s):
R. L. FLOYD
Claimant short name:
FLOYD
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105256
Motion number(s):

Cross-motion number(s):
CM-74103
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
R. L. Floyd, Pro Se
Defendant’s attorney:
Lustig & Brown, LLPBy: James J. Navagh, Esq.
Third-party defendant’s attorney:

Signature date:
May 6, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s cross-motion[1] for summary judgment:
1. Notice of cross-motion and supporting affidavit of James J. Navagh, Esq., sworn

to October 15, 2007, with annexed Exhibits A-I;

2. Defendant’s memorandum of law dated October 15, 2007.


Filed papers: Notice of Claim[2] filed November 26, 2001; Amended Answer filed December 10, 2001.

This is an action for personal injuries arising out of an incident which occurred on September 27, 1999 when the Claimant, now appearing pro se, was allegedly struck on the head by a coil of cable while working as a painter on the southbound north Grand Island Bridge. Defendant now moves for summary judgment on the grounds that the claim is jurisdictionally defective, Claimant cannot establish liability under § 240 (1) of the Labor Law, and any negligence claim is time barred.
Jurisdictional Defect
Defendant alleges that the claim is jurisdictionally defective due to Claimant’s failure to set forth in his claim a “total sum claimed” as required by § 11 (b) of the Court of Claims Act. This allegation was based on the Court of Appeals decision in Kolnacki v State of New York, 8 NY3d 277 [2007], in which the Court held that the failure to include the total sum of monetary damages in the claim constituted a jurisdictional defect requiring dismissal of the claim. Section 11 (b) of the Court of Claims Act, however, was recently amended (L 2007, ch 606). It now provides that a sum certain is no longer required to be stated in a claim for personal injury, and applies to claims pending in the Court of Claims on or after April 28, 2008 (L 2008, ch 64). Because claim no. 105256 is still pending, it may no longer be considered jurisdictionally defective due to the absence of a sum certain, and Defendant’s motion for summary judgment dismissing the claim on jurisdictional grounds must be denied.
Labor Law § 240 (1)
Labor Law § 240 (1) requires contractors and owners to provide safety devices in order to protect against gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. “Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Not every worker who falls and not every object that falls on a worker gives rise to liability under § 240 (1) of the Labor Law. Rather, liability pursuant to § 240 (1) is contingent upon the existence of a hazard contemplated within the statute and the failure of, or the inadequacy of, a safety device enumerated therein (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Thus, if the Movant fails to meet its initial burden, then the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, supra at 562). Every inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the non-moving party.

Defendant argues that Claimant will be unable to prove that his accident falls within the limited protection of § 240 (1) of the Labor Law. The only deposition testimony offered in support of Defendant’s motion is the testimony of the Claimant. From a reading of the entire deposition transcript, it is clear that Claimant has no idea how the incident occurred. He does not know if the coil of cable slipped off the decking above or was dropped by a co-worker, or even if the coiled cable was being hoisted or lowered at the time of the accident. Based on his limited knowledge as to how the accident occurred, Claimant may have a difficult time proving his case at trial. On this motion for summary judgment, however, it is the Defendant, as the moving party, and not the Claimant, who has the burden of proof. Defendant has failed to meet its burden. Claimant does not know how the incident occurred and because Defendant offered no other evidence, too many questions of fact remain which prevent the Court from determining whether this incident falls within the purview of the limited protection of § 240 (1) of the Labor Law. Thus, regardless of the fact that Claimant offered no written opposition to this motion, Defendant’s motion for summary judgment under § 240 (1) must be denied.
Negligence
Finally, Defendant argues that insofar as the claim can be read as asserting a cause of action for common law negligence it must be dismissed as such a cause of action is time barred because Judge Edgar C. NeMoyer did not give Claimant permission to late file a negligence claim (see Defendant’s Exhibit C).

Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim against the State of New York must be filed and served within 90 days of accrual unless the Claimant serves upon the Attorney General within the same 90-day period a notice of intention to file a claim, in which event the claim shall be filed and served within two years of the accrual of the claim. Here, the negligence cause of action accrued on September 27, 1999 when the incident occurred. Neither a claim nor a notice of intention to file a claim was served and filed within 90 days of this accrual date. Because the filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]), Claimant’s negligence cause of action would have to be dismissed unless he moved for permission to late file a negligence claim and permission was granted pursuant to § 10 (6) of the Court of Claims Act. While Claimant brought a timely motion to late file a claim, Judge NeMoyer only granted Claimant permission to late file a claim under § 240 (1) of the Labor Law (see Defendant’s Exhibit C). Nothing in Judge NeMoyer’s decision granted Claimant permission to late file a negligence claim. Accordingly, Claimant’s claim insofar as it can be construed as asserting a negligence cause of action is dismissed.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s motion to dismiss the claim as being jurisdictionally deficient because it does not set forth a sum certain is denied; and it is further

ORDERED, that Defendant’s motion for summary judgment dismissing Claimant’s Labor Law § 240 (1) claim is denied; and it is further

ORDERED, that Defendant’s motion to dismiss Claimant’s claim insofar as it can be construed as alleging a negligence cause of action is granted.



May 6, 2008
Buffalo, New York
HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. By order to show cause dated April 5, 2007 (M-73182), Claimant’s former counsel moved for permission to withdraw as counsel. In response, Defendant cross-moved for summary judgment. By decision and order dated January 17, 2008, Claimant’s former counsel was permitted to withdraw as counsel for Claimant (see Floyd v New York State Thruway Authority, Ct Cl, January 17, 2008, Moriarty, J., Claim No. 105256, Motion No. M-73182, UID # 2007-037-060). Defendant’s cross-motion for summary judgment was adjourned to give Claimant additional time to secure new counsel.
[2]. An action in the Court of Claims is commenced by the service and filing of a claim, not a notice of claim.