New York State Court of Claims

New York State Court of Claims

GEHL v. STATE OF NEW YORK, #2008-037-039, Claim No. NONE, Motion No. M-75258


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:
Lipsitz Green Scime Cambria LLPBy: Michele A. Smith, Esq.
Defendant’s attorney:
Davidson Fink LLPBy: Fernando Santiago, Esq.
Third-party defendant’s attorney:

Signature date:
December 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movant’s motion for leave to late file a claim:
  1. Notice of motion dated June 26, 2008 and supporting affirmation of Michele A.
Smith, Esq. dated June 27, 2008, with annexed Exhibits A-F;

  1. Supporting affidavit of Robert T. Gehl sworn to in June, 2008;
  1. Movant’s memorandum of law dated June 27, 2008;
  1. Opposing affidavit of Peter Sidell sworn to August 19, 2008;
  1. Opposing affirmation of Fernando Santiago, Esq. dated August 20, 2008;
  1. Opposing affidavit of Marshelle Gillette sworn to August 20, 2008;
  1. Opposing memorandum of law dated August 19, 2008;
  1. Reply affirmation of Michele A. Smith, Esq. dated September 30, 2008, with
annexed Exhibit A.

According to the proposed claim (Movant’s Exhibit F), Movant was injured on October 17, 2007 while employed by LeChase Construction Services, LLC (LeChase) as a union carpenter when the six-foot step ladder he was standing on “shifted” and he fell to the ground. At the time of the incident, Movant was working on a renovation project at the State University College of Technology at Alfred, New York (Alfred State College). Movant further alleges in his proposed claim that the State of New York as “owner and/or contractor” failed to provide him with a safe place to work and with proper safety equipment in violation of the United States Occupational Safety and Health Act (OSHA), sections 200 and 240 (1) of the Labor Law and §§ 23-1.5 and 23-1.21 of the Industrial Code (12 NYCRR §§ 23-1.5 and 23-1.21). Movant, Robert T. Gehl, now moves the Court for leave to late file a claim.

Initially, the Court must determine whether Movant’s motion to late file a claim was filed within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR statute of limitations (Court of Claims Act § 10 [6]). The failure to file this type of motion within the prescribed time period creates a fatal jurisdictional defect (Byrne v State of New York, 104 AD2d 782 [1984], lv denied 64 NY2d 607 [1985]). The various causes of action alleged in the proposed claim are governed by the three year statute of limitations set forth in CPLR § 214. Because Movant’s motion was filed within three years of October 17, 2007, the date of the alleged incident, it is timely.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. In his affidavit, Movant alleges that he did not pursue his claim earlier because he was focused on rehabilitation and trying to get well. Also attached to his motion papers as Exhibit E is a copy of the operative notes from Strong Memorial Hospital in Rochester, New York which indicate that Movant underwent posterior spinal fusion surgery on October 18, 2007, the day after the subject incident. While neither the hospital records nor Movant’s affidavit state how long Movant was hospitalized, the affirmation of Movant’s counsel indicates that Movant was hospitalized for two weeks. Defendant argues that Movant failed to submit an affidavit from a physician attesting to Movant’s physical incapacity to contact an attorney. While the Court sympathizes with Movant’s desire to concentrate on his health, this does not adequately explain the 9-month delay between the date of the incident and the filing of this motion, especially where, as here, it is obvious that his counsel delayed at least two more months after being contacted before bringing this motion.[1] In addition, Movant’s counsel states in her reply affirmation under the heading “EXCUSE FOR DELAY” that Mr. Sidell who provided a defense affidavit did not advise Movant of the time periods within which to bring a claim. Because ignorance of the law is not a reasonable excuse for the failure to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]), and because Movant’s medical condition does not explain the 9-month delay (Nicometti v State of New York, 144 AD2d 1036 [1988], lv denied 73 NY2d 710 [1989]), this factor weighs against Movant’s application. The lack of an excusable delay is, however, only one of the factors to be considered by the Court.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that Defendant had knowledge of the incident and an opportunity to investigate because the incident was reported to campus police, several office workers allegedly witnessed the incident, and because the on-site inspector and the project manager allegedly learned of the incident within 90 days and thus had the opportunity to investigate. There is no evidence, however, that either the on-site inspector or the project manager were on site, much less in the area of the incident, on October 17, 2007, and no evidence that either received timely notice of the incident. In addition, contrary to the affirmation of Movant’s counsel, none of the alleged witnesses who gave statements (see Movant’s Exhibit B) were Defendant’s employees (see affidavit of Marshelle Gillette) or actually witnessed the incident. Rather, they all arrived at the scene after the incident had occurred and Movant was on the ground. In addition, the campus accident report (Movant’s Exhibit A) merely states that “a male had fallen off a ladder.” Movant argues that the campus police report, however, also states in the status block “closed by investigation.” In reliance on Quilliam v State of New York, 282 AD2d 590 (2001), Defendant argues that Movant may not rely on the campus police report as a means of notice because it fails to include any of the essential facts of the incident needed to perform an investigation and fails to reference any defect or dangerous condition, or connect Movant’s injuries to any negligence of the Defendant. This argument would be more persuasive if the present potential claim involved a slip and fall on Defendant’s property as was the situation in Quilliam. Here, however, Movant allegedly fell from an elevated height and under Labor Law § 240 (1), an owner or contractor may be found liable without a showing of negligence. Moreover, Marshelle Gillette, the Director of Procurement and Payment Services for Alfred State College, states in her defense affidavit that she had notice that an individual had fallen off a ladder, but that she did not report it to any other State employee to conduct an investigation or to the Attorney General’s office because the campus police report did not lead her to believe that either the State of New York or Alfred State College was liable or responsible for the incident. The campus police and at least Ms. Gillette were, however, on notice of enough facts to at least suspect a potential Labor Law § 240 (1) cause of action. The two factors of notice and opportunity to investigate thus weigh in favor of Movant’s application, but only with respect to a potential Labor Law § 240 (1) cause of action.

Defendant argues that it will be prejudiced if this 9-month old claim is allowed to proceed because of the changing nature of the construction site where the incident occurred and because witnesses and the ladder may be difficult to locate. The problem with this argument is that the construction work was essentially completed in August of 2007 (see affidavit of Marshelle Gillette), before the incident occurred. Movant could have filed a timely claim and Defendant would still be faced with the same completed construction site. The more troublesome aspect of this factor is the potential difficulty in locating witnesses and the ladder. This difficulty could prejudice the Defendant, especially if Movant subsequently tries to argue that there was a defect in the subject ladder. This factor is thus neutral, neither weighing in favor of or against Movant’s application.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Claimant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11). In the proposed claim Movant alleges several causes of action. The merits of each will be addressed seriatim.

Labor Law § 240 (1)

The so-called scaffolding law, § 240 (1), requires that
“. . . [a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 a person so employed.”

Labor Law § 240 (1) imposes absolute liability. Its purpose “is to protect workers from the extraordinary hazards of elevating themselves or their materials” (Corbett v Hogan, 248 AD2d 983 [1998]). Not all elevation-related risks are, however, encompassed within the extraordinary protection of § 240 (1) of the Labor Law ( Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). More than the mere fact that Movant fell from a ladder will have to be established before liability may ultimately be imposed. It would have been better practice for Movant to have alleged some facts as to how the incident occurred in support of his motion. Rather, all Movant alleges in the proposed claim is that the ladder he was standing on somehow “shifted” causing him to fall to the ground. But even this minor detail is not supported by the record. The campus police accident report (Movant’s Exhibit A) states that a male had fallen off a ladder, the ambulance report (Movant’s Exhibit D) indicates a fall of 6 feet, and Movant’s affidavit merely states that the ladder “gave way.” Furthermore, according to the affidavit of Peter Sidell, Safety Director for Movant’s employer LeChase, Movant allegedly told him that he missed a step and lost his balance as he was taking a step down the ladder. Movant did not confirm or deny this allegation in a reply affidavit. Because of the paucity of factual information provided by Movant, the factor as to whether a § 240 (1) cause of action appears meritorious is a very, very close question. However, because the Court cannot conclude on the limited facts available that a Labor Law § 240 (1) cause of action is groundless, frivolous or legally defective (see Matter of Santana v New York State Thruway Auth., supra ), this factor weighs in favor of Movant’s application.

Labor Law § 200 and Common Law Negligence

Labor Law § 200 is a codification of common law negligence. It imposes on owners and contractors a duty to provide workers with a safe place to work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). As a landowner, Defendant may only be held liable if it exercised supervisory control over the work which caused the Claimant’s injuries (Kazmierczak v Town of Clarence, 286 AD2d 955 [2001]; Rapp v Zandri Constr. Corp., 165 AD2d 639 [1991]), or if there was a dangerous condition on the owner’s property which caused the injuries and of which the landowner had notice (Blackburn v Eastman Kodak Co., 256 AD2d 1123 [1998]).

In the proposed claim, Movant generally alleges that the Defendant “acting as owner and/or contractor” failed to provide a safe place to work, failed to provide working conditions free from hazards, failed to provide safety equipment, and failed to inspect the work site. Movant fails to specify any hazard, defect or dangerous condition on the premises, fails to allege that Defendant had notice of any specific hazard, defect or dangerous condition, or the time to correct it, and fails to even allege that Defendant supervised or controlled the manner and method of the work being performed at the time of the incident. Nowhere in the proposed claim or in any of the affidavits, or in any of the accident, operative or ambulance reports is there a scintilla of evidence and absolutely no allegations to even suggest the existence of a meritorious cause of action under Labor Law § 200 or under common law negligence (Elias v State of New York, Ct Cl, Scuccimarra, J., March 23, 2005, claim no. none, motion no. M-69223, UID # 2004-030-946).[2]

Movant also generally alleges in his proposed claim that Defendant violated §§ 23-1.5 and 23-1.21 of the Industrial Code (12 NYCRR §§ 23-1.5 and 23-1.21) and unspecified sections of OSHA. Violations of Industrial Code regulations are usually cited in a construction accident claim as the bases of a Labor Law § 241 (6) cause of action. Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]). Movant has failed, however, to allege such a cause of action. But had such a cause of action been alleged, it would have failed because a violation of a rule or regulation of the Industrial Code which sets forth a general reiteration of common-law principles (as § 23-1.5 has been held to be) may not form the predicate of a § 241 (6) cause of action (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Wynne v State of New York Ct Cl, Mignano, J., August 20, 2007, claim no.110003, motion no. M-73014, UID # 2007-029-032).

Movant has also failed to allege a cause of action based upon alleged violations of unspecified subsections of § 23-1.21 of the Industrial Code pursuant to § 241 (6) of the Labor Law or under common-law principles. The various subsections of regulation 23-1.21 set forth the standards applicable to the installation and use of “ladders and ladderways.” No specific subsection is cited and Movant again fails to set forth any facts as to how the incident occurred or to show how any specific subsection was violated by any specific conduct of Defendant, and has failed to show any relationship between a specific regulation and the manner in which the incident occurred.

Finally, Movant argues that Defendant violated unspecified OSHA regulations. OSHA addresses the relationship between employers and employees and imposes its standards on employers. OSHA does not impose a nondelegable duty on an owner or a contractor (McGrath v Lake Tree Vil. Assoc., 216 AD2d 877 [1995]; Pellescki v City of Rochester, 198 AD2d 762 [1993], lv denied 83 NY2d 752 [1994]). Moreover, no private right of action exists for a violation of an OSHA standard (Matter of Eighth Jud. Dist. Asbestos Litig., 12 Misc 3d 936 [2006]), and such a violation does not form the predicate of a Labor Law 241 (6) cause of action. While a violation of an OSHA regulation can be used in certain circumstances to show some evidence of negligence (see Landry v General Motors Corp., Cent. Foundry Div., 210 AD2d 898 [1994]), Movant has once again failed to specify a particular OSHA regulation or set forth facts to show how Defendant violated any specific regulation, or to show how the alleged violation caused the incident. The Court has painstakingly considered Movant’s proposed claim and all the affidavits and documents attached to Movant’s papers and concludes that there is a complete lack of an appearance of merit to a Labor Law § 200 cause of action or to a common-law negligence cause of action whether asserted as a violation of Industrial Code and/or OSHA regulations, or even to a Labor Law § 241 (6) cause of action which was not alleged.

Considering the final factor, Defendant correctly argues that Movant should be entitled to benefits under the Workers’ Compensation Law. While the right to receive Workers’ Compensation benefits may provide only a partial remedy (Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [1988]), it may still serve as an additional remedy (Nicometti v State of New York, supra). The final factor thus weighs against Movant’s application.

Based on the foregoing and after balancing all of the factors, it is hereby

ORDERED, that Movant may file and serve a claim alleging a single cause of action under § 240 (1) of the Labor Law comporting with §§ 10, 11 and 11-a of the Court of Claims Act within 45 days of the date on which this decision and order is filed.

December 4, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. Movant’s counsel admits in her affirmation that an investigation was undertaken by her firm before this motion was filed and statements (Movant’s Exhibit B) taken by a private investigator undoubtedly retained by Movant’s counsel were dated May of 2008, almost two months before this motion was brought.
[2].This and other Court of Claims decisions may be found on the Court’s website at