New York State Court of Claims

New York State Court of Claims

MANDRICK v. THE STATE OF NEW YORK, #2009-040-090, Claim No. NONE, Motion No. M-77003


Motion to file a claim late pursuant to Court of Claims Act § 10(6) granted as to Labor Law §§ 200 and 240(1) and denied as to § 241(6).

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:
MAINETTI, MAINETTI & O’CONNOR, P.C.By: Joseph E. O’Connor, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Joan Matalavage, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the application of Movant, John Mandrick, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

The proposed Claim, attached to the motion papers asserts that Movant was injured on June 18, 2008 at the Napanoch Sewer Plant located on Institution Road in Napanoch, Ulster County, New York. In his affidavit submitted in support of the motion, Movant asserts that he is employed by the Town of Wawarsing and that, on June 18, 2008, he was working at the Napanoch Sewer Plant located on property owned by the State of New York. Movant asserts that, at approximately 9:30 a.m., during the course of his employment, he was working at an elevated height approximately 12 feet above a water treatment area. Movant avers that there was grating affixed to the area at the location that was supposed to prevent the workers from falling and that he was “demolishing, repairing and/or altering a portion of a structure that had become unusable” (Mandrick Affidavit, ¶ 8). He further asserts that he was not performing routine maintenance (id.), and that he was standing on defective grating and was caused to fall several feet to the ground, injuring his shoulder, left hip and knee (id., ¶ 9). Movant asserts that the State did not provide him with appropriate safety devices for the performance of his job nor was he given proper protection considering the height at which he was working (id., ¶ 10). The proposed Claim asserts that the State violated Labor Law §§ 200, 240(1), (2), and (32)[1] and 241(6).

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence (CPLR § 214[5]), a three-year statute of limitations applies and the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse – that initially the Town of Wawarsing, rather than the State, appeared to be the proper defendant – is not a reasonable excuse (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Hepner v State of New York, Ct Cl, Claim No. None, Motion No. M-76005, February 13, 2009, Ruderman, J. [UID No. 2009-010-002]). In addition, in his affirmation submitted in support of the motion, Movant’s counsel asserts that Mr. Mandrick’s focus during the first 90 days following the incident was his recovery from his severe injuries (Affirmation of Joseph E. O’Connor, Esq., ¶ 5). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired September 16, 2008. However, Movant has submitted neither a physician’s affidavit nor hospital records to establish the length of time of his alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why he could not contact counsel and serve a notice of intention to file a claim prior to expiration of the statutory period. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981 [1982]).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together.

Movant asserts that Defendant knew of his accident both because a New York State Workers’ Compensation Board Employer’s Report of Work Related Accident was filed on the date of the accident and because the property is regularly monitored by New York State Department of Correctional Services personnel (Mandrick Affidavit, ¶ 14). Movant concludes that, since the State had notice of the accident, it had an opportunity to investigate the claim.

In her affidavit in opposition to the motion, the State’s counsel asserts that Movant did not establish that the State had notice of the accident or had an opportunity to investigate the incident. Counsel further states that Movant seems to be arguing that State agencies should be monitoring filings with the Workers’ Compensation Board on the chance that such a filing somehow might be tied to a State interest (Affidavit of Joan Matalavage, Esq., ¶¶ 11 & 12). However, counsel has submitted only her own conclusory affidavit in this regard. There is no statement from a potential witness stating that the witness does not remember the event or that the State attempted an investigation and was unable to do so. In fact, the affidavit of State Investigator Susan J. White (submitted as Exhibit B attached to the State’s Opposition papers) establishes that the State has located four potential witnesses who advised Investigator White that they each were aware of Mr. Mandrick’s fall (White Affidavit, ¶ 5). The Court cannot conclude on this record that the State will be substantially prejudiced by the approximately 10-month delay between the expiration of the 90-day period and the making of this motion. Thus, the Court concludes these factors weigh in Movant’s favor (Matter of Smith v State of New York, 63 AD3d 1524, 1525 [4th Dept 2009]).

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant may have at least a partial alternate remedy in Workers’ Compensation benefits. Nonetheless, Movant’s action against Defendant is not limited by the Workers’ Compensation Law since Movant is not an employee of the Defendant (see Workers’ Compensation Law § 2 [3], [4]). It also appears that Movant has commenced a lawsuit against the contractor hired by the Town of Wawarsing to assist in making repairs to the metal grating on the waste water treatment tanks (White Affidavit, ¶ 7). To the extent that other remedies may be available to Movant, it has not been established to be a sufficient alternative remedy so as to bar the instant claim (Rosenhack v State of New York, 112 Misc 2d 967, 969 [Ct Cl 1982]).

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, supra at 968; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or contractor to exercise reasonable care to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). However, a distinction has been drawn between those cases in which an injury is caused by a defective condition of the premises and those in which the injury results from defective equipment or its operation (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [4th Dept 1996]). Liability for an injury resulting from a dangerous condition at the work site may be imposed on the owner where the owner either exercised supervision and control over the work or had actual or constructive notice of the unsafe condition on the premises (Kerins v Vassar College, 15 AD3d 623, 625-626 [2d Dept 2005]; Abayev v Jaypson Jewelry Mfg. Corp., 2 AD3d 548, 549 [2d Dept 2003]; Blanco v Oliveri, 304 AD2d 599 [2d Dept 2003]; Higgins v 1790 Broadway Assoc., 261 AD2d 223, 225 [1st Dept 1999]).

The proposed Claim alleges that the injury to Movant was the result of the condition of the grate. The State established that it owns the treatment plant but that the Town of Wawarsing has responsibility for maintaining and improving the plant (Exs. A & B attached to Affidavit of George Glassanos, Esq. submitted in Opposition to the Motion). However, Movant alleges that the State had notice of the condition of the grating. If proved at trial, this allegation could bring Defendant within the ambit of Labor Law § 200. Therefore, the Court finds that Movant has alleged at least a colorably meritorious claim in regard to Labor Law § 200.

“Labor Law § 240(1) applies to both ‘falling worker’ and ‘falling object’ cases” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). It covers only those special risks, however, that are “associated with elevation-related hazards” and not “any and all perils that may be connected in some tangential way with the effects of gravity” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993] [emphasis in original]). The Court of Appeals recently stated in Sanatass v Consolidated Investing Company, Inc. (10 NY3d 333, 337 [2008]):
It is now settled that the term “altering” as used in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]). Conversely, an alteration “does not encompass simple, routine activities such as maintenance and decorative modifications” (Panek v County of Albany, 99 NY2d 452, 458 [2003]).
Here, Movant has averred in his affidavit in support that the work he was performing at the time he fell “did not constitute routine maintenance but was a necessary repair and demolition of an existing structure” (Mandrick Affidavit, ¶ 8).

The Court of Appeals in Sanatass v Consolidated Investing Company, Inc. (10 NY3d 333, supra at 339) held:
[I]t is clear that the statutory duty imposed by this strict liability provision is “nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Additionally, section 240 (1) “is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” (Panek, 99 NY2d at 457 [internal quotation marks and citation omitted]).
The Court further stated:
[O]ur precedents make clear that so long as a violation of the statute proximately results in injury, the owner's lack of notice or control over the work is not conclusive – this is precisely what is meant by absolute or strict liability in this context (see Blake, 1 NY3d at 289) (id. at 340).
Here, Movant has alleged a colorably meritorious claim pursuant to § 240 (1), which imposes a nondelegable duty upon an owner to provide and operate safety devices to protect workers from the danger of falling from an elevated work site (see Sanatass v Consolidated Investing Company, Inc., 10 NY3d 333, supra).

Labor Law § 240(2) refers to scaffolding or staging more than 20 feet from the ground or floor. Here, Movant asserts that he was working at a height of about 12 feet. The Court concludes that the allegation that Labor Law § 240(2) was violated lacks the appearance of merit based upon the facts as alleged.

If Movant’s incorrect citation in the proposed Claim to Labor Law §240(32) is intended to reference § 240(3), the Court concludes that the allegation that Labor Law §240(3) was violated lacks the appearance of merit based upon the facts as alleged. Section 240(3) refers to weight- bearing requirements for scaffolding. Movant alleges he was standing on a grating at the time of his fall. There is no allegation that scaffolding was involved. “Surfaces that ‘consist[ ] of the work itself’ do not constitute a scaffold or other device designed to minimize elevation-related risks” (Futo v Brescia Bldg. Co., 302 AD2d 813, 815 [3d Dept 2003], quoting Broderick v Cauldwell-Wingate Co., 301 NY 182, 187 [1950]).
Turning to the Labor Law § 241(6) cause of action, a claimant asserting such a cause of action must allege a violation of a specific provision of the Industrial Code (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 851 [2d Dept 2006], lv dismissed 8 NY3d 841 [2007]). Here, the proposed Claim does not assert that any specified sections of the Industrial Code were violated. The Court concludes that this cause of action does not have the appearance of merit.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor for the causes of action alleging a violation of Labor Law §§ 200 and 240(1), but not § 240(2), §240 (3) or §241(6). The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State asserting violations of Labor Law §§ 200 and 240(1) only, and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
December 2, 2009
Albany, New York
Judge of the Court of Claims
The following papers were read on Movant’s application for permission to file a late claim:
Papers Numbered
Notice of Motion, Affidavit,
Affirmation & Exhibit Attached 1
Affidavit in Opposition &
Exhibits Attached 2
Movant’s Memorandum of Law 3

[1].The Court notes that Labor Law §240 has only 3 subsections. Thus, the Court concludes that the reference to subsection 32 is a typographical error.