New York State Court of Claims

New York State Court of Claims

GABLER v. STATE OF NEW YORK, #2008-045-005, Claim No. None, Motion No. M-74242


Late claim motion granted.

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:
Hoffman & AssociatesBy: James G. Fitzsimons, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney General
By: Betancourt, Van Hemmen, Greco & KenyonBy: Ronald Betancourt, Esq. and Virginia A. Harper, Esq.
Third-party defendant’s attorney:

Signature date:
January 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Attorney Affirmation in Support, Claimant’s Memorandum of Law in Support with annexed Exhibits 1-3, Defendant’s Memorandum of Law in Opposition, Affidavit of Edmund Donovan, Claimant’s Reply Affirmation and Claimant’s Reply Memorandum of Law in Support.

Claimant, William Gabler, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed claimant’s motion.

Claimant, William Gabler, alleges in his proposed claim (Cl Exh 3) that on January 17, 2006 at approximately 6:40 a.m. he was injured while performing work upon a pier section of the Wantagh State Parkway Bridge. On that date, claimant was an employee of the Modern Continental Construction Company, Inc. (Modern) which had contracted with defendant to reconstruct the bridge. Claimant asserts that defendant was the owner of the bridge as well as the general contractor of the construction project.

Claimant was assigned by Modern to perform carpentry work on the pier section of the bridge. Claimant states that during the construction project a blue I-beam ran the entire length of the pier and was used as a walkway by the workers to reach other portions of the construction site. Claimant explains that the I-beam was the only walkway made available to the workers to get to and from different work areas on the pier at the time of the accident.

On January 17, 2006, the “dockbuilders” were using a barge from which they performed construction operations at the work site. The barge’s mooring line was wrapped around and attached to the I-beam and work platform in order to keep the barge in a stationary location. The mooring lines would be tied to different sections of the I-beam at various times as the barge was moved. Claimant alleges that the I-beam was not well illuminated in the area where the mooring line was tied up. Claimant states that on January 17, 2006, at approximately 6:40 a.m., he tripped and fell over a mooring line which was attached to the I-beam.

Claimant states that his accident was witnessed by an employee on the site who he identifies only as “Spiro”. Claimant continued to work for an additional two weeks following his accident but eventually consulted with a physician for the injuries he suffered due to the fall.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant alleges that defendant had notice of the essential facts constituting the claim as well as an opportunity to investigate the circumstances underlying the claim because the accident and its conditions were raised and discussed at a subsequent safety meeting in which both he and defendants’s representatives attended. Additionally, claimant alleges that defendant’s inspectors were present on the job site on a daily basis and frequently stepped over the mooring lines attached to the I-beam. He also reported the accident to Gary Valleau, the job foreman and Jack Lee, Modern Continental’s Site Safety Representative immediately after the occurrence. He sets forth his understanding that Jack Lee was under a contractual obligation to report his accident and injury to defendant. In response, defendant submitted an affidavit from Edmund Donovan, who was employed by the New York State Department of Transportation, as the engineer in charge at the construction site. In his affidavit he affirms that he reviewed the inspector’s daily reports for the day in question, and concludes that “we” were never notified of the claimant’s injury. He also states that he was never informed of claimant’s injury by either Mr. Valleau or Mr. Lee and only learned of the incident when claimant filed his original late claim application in January 2007.

Defendant argues that they are not able to examine the area where claimant allegedly tripped and fell. Claimant has set forth, without contradiction, that “shortly after the incident, the line was untied and affixed to a safer location. Thus, within hours, the transient, hazardous condition was corrected.” Claimant asserts that the construction project is presently ongoing, the I-beam is still in use at the project and the conditions surrounding his accident can be easily replicated.

Defendant’s opportunity to investigate the area of the fall at the time of the incident was negatively affected because the mooring line was moved hours later. As a result, defendant is in relatively the same position it would have been if the claim had been served within the statutory 90-day period. Consequently, granting the present motion would not cause substantial prejudice to defendant. Based upon the foregoing, the Court finds that the balance of these factors weigh in claimant’s favor.

The next factor to be assessed is whether claimant has any other available remedy. In this case, claimant has applied for and received worker’s compensation benefits from his employer. Receipt of worker’s compensation benefits can serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036 [4th Dept 1988] lv denied 73 NY2d 710), even though it may only be a partial remedy (Garguiolo v New York State Thruway Authority, 145 AD2d 915 [4th Dept 1988]). Although worker’s compensation benefits would not provide full compensation, claimant has stated that he can bring an alternative action against the defendant under United States General Maritime Law, 28 USC §1333. As such this factor weighs in defendant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]).

Claimant’s proposed claim alleges violations of Labor Law §§ 200, 240 and 241(6). Labor Law § 200 provides in part that workplaces:

shall be so constructed, equipped, arranged operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.

Section 200 of the Labor Law is a codification of the common-law duty imposed on owners and general contractors to provide a safe place to work (Rizzuto v L.A. Wegner Contracting Company, 91 NY2d 343 [1998]; Allen v Cloutier Construction Corp., 44 NY2d 290 [1978]).

“An implicit precondition to this duty ‘is that the party charged with responsibility have the authority to control the activity bringing about the injury’ (Russin v Picciano & Son, 54 NY 2d 311, 317). Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v. Stout, 80 NY2d 290, 295 [1992]).” (Comes v New York State Electric & Gas, 82 NY2d 876, 877 [1993]).

Claimant’s papers allege that defendant’s inspectors were at the construction site on a daily basis. However, claimant has failed to establish that they had the requisite authority over the activity which brought about his injury. “General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence under Labor Law § 200” (Dos Santos v STV Engineers, Inc., 8 AD3d 223, 224 [2d Dept 2004], lv denied 4 NY3d 702 [2004]). As such, there is no basis for finding an appearance of merit as to this alleged claim.

Labor Law § 240(1) provides:

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, 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, ladder, 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.

The Court of Appeals has recognized that the various tasks for which these devices are customarily needed or used all entail risk because of the relative elevation at which the task must be performed or at which materials and loads must be positioned or secured (Rocovich v Consolidated Edison Company, 78 NY 2d 509, 514 [1991]).

“[T]he special hazards referred to are limited to such specific gravity-related accidents, as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (citation omitted). In other words, 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-Electric Co., 81 NY2d 494, 501 [1993] (emphasis omitted).

Claimant has not satisfied his burden of establishing that his Labor Law § 240(1) claim is meritorious.

Labor Law § 241(6) provides:

“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.”

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’ to all persons employed in areas in which construction, excavation, or demolition work is being performed. (see, Rizzuto v Wenger Contr. Co. 91 NY2d 343, 347; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). However, to prevail upon a Labor Law §241(6) claim, a [claimant] must establish that the defendant violated a regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Whalen v City of New York, 270 AD2d 340)” (Miranda v City of New York, 281 AD2d 403, 404 [2d Dept 2001]).

Claimant alleged a violation of the New York State Industrial Code, 12 NYCRR 23-1.7 (e) (1) and (2), Tripping and Other Hazards. This regulation is specific enough to support a cause of action under Labor Law §241(6) (McDonagh v Victoria’s Secret, Inc., 9 AD3d 395 [2d Dept 2004]). For the purposes of this motion, claimant only has to establish an appearance of merit and does not have to establish a prima facie claim. The Court finds that the claimant has asserted a meritorious cause of action with respect to the alleged violation of Labor Law § 241(6).

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), the Court finds that claimant’s motion to file a late claim is granted, limited to the violations of Labor Law § 241(6).

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim[1], together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.

January 22, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].Claimant shall delete all references to his Labor Law §§ 200 and 240(1) claims from the proposed claim prior to serving and filing the proposed claim.