|Claimant short name:||BELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||STANLEY LAW OFFICES
By: Robert A. Quattrocci, Esquire
|Defendant's attorney:||LAW OFFICE OF THERESA J. PULEO
By: P. David Twichell, Esquire
|Third-party defendant's attorney:|
|Signature date:||March 1, 2010|
|See also (multicaptioned case)|
Movant brings a motion seeking permission to serve and file a late claim in accordance with Court of Claims Act § 10 (6). Defendant opposes the motion. The Court heard oral arguments on the motion on December 15, 2009.
The proposed claim seeks damages for injuries Movant sustained when he was a laborer at a work site in the City of Oswego on April 21, 2008. The contract between Vector Construction Corp., (hereinafter Vector) and the State of New York involved the rehabilitation of the State Route 104 bridge over the Oswego River and included the removal and demolition of the existing concrete bridge decking and support beams. Movant was an employee of Vector. The work involved removing concrete beams from the bridge to a fenced demolition area just off of the bridge. These beams were three feet wide by four feet high as they rested on the ground. Metal rebar was embedded into the concrete beams. An excavator equipped with a "hoe-ram" attachment was used to break the beams into 10 to 15 feet long pieces which could then be removed and disposed of offsite. The hoe-ram forcibly impacted the concrete causing it to break apart. Movant's job was to cut any remaining joined rebar after the hoe-ram had broken the concrete apart. Movant was injured when the hoe-ram contacted the concrete beam and a piece of the rebar sprung out of the concrete and pierced his bicep muscle. Movant was standing approximately eight feet away from where the hoe-ram was breaking up the concrete beam at the time of his injury.
It is Movant's position that the State bears responsibility for this accident as an owner under Labor Law § 200, which codified the common law, and Labor Law § 241 (6) for violations of Industrial Code §§ 23-3.4 (c) (2) and (3) (12 NYCRR § 23-3.4 [c]  and [c] ).
Court of Claims Act § 10 (6) allows a Movant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 ). Movant's motion is timely (Court of Claims Act § 10 ; CPLR § 214 ).
Court of Claims Act § 10 (6) requires that the Court, in deciding an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).
The first factor is whether the delay in filing the claim is excusable. The accident occurred on April 21, 2008, and this application was not brought until September 3, 2009 - 17 months later. This factor was not addressed in Movant's papers and, thus, this substantial unexplained delay weighs against granting the application.
The next three factors, whether the State had notice of the essential facts constituting the claim, whether the State had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file and serve a timely claim or serve a timely notice of intention has resulted in substantial prejudice to the State, all being interrelated, will be addressed together.
It is Movant's position that the State had timely notice of the facts underlying this claim and an opportunity to investigate because inspectors were located on the job site and were made aware of the accident shortly thereafter. Movant argues that an investigation was performed by Vector, and Movant returned to work on limited assignment four weeks after the accident. Although the State did not witness the accident, it clearly had timely notice of the accident and an opportunity to investigate. Despite the delay in bringing this application, the Court does not find that the State will be prejudiced if it is granted. These factors weigh in favor of the Movant's motion.
The next factor, by far the most critical, is whether the proposed claim has the appearance of merit. Thus, unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Yet the burden is minimal, as generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).
Defendant vehemently argues that this claim lacks even the appearance of merit. It is Defendant's position that in order for there to be a viable cause of action under Labor Law § 200, there must be some showing that the owner exercised actual supervisory control over the injured party's work at the time of the injury, and the owner must have notice, actual or constructive, of the purportedly unsafe work or practice. Defendant submits the affidavit of John F. DeOrdio, P.E., who was the State Engineer-in-Charge on this contract project. Mr. DeOrdio states that at the time of this accident he was in his field office, working, and neither of the two Department of Transportation (DOT) inspectors were at the location of the accident. None of them witnessed this accident or were in the vicinity of this accident at the time it occurred. Mr. DeOrdio also states that the State did not direct Vector in the method or procedure it should use to break the concrete into smaller pieces, instead Vector determined the means by which this job would be accomplished. Nor did the State supervise the process or instruct Vector employees and Movant on how their jobs should be performed. Mr. DeOrdio acknowledges that, as the Engineer-in-Charge, he had both the duty and authority to stop the work if it did not conform to the contract specifications or if the conditions "seriously affected the safety of the public or workers employed on the job." (See Defendant's Affidavit of John F. DeOrdio, Exhibit A). He also had the authority to direct the contractor to correct safety violations. The Standard Specification which was part of the contract between Vector and the State provides under § 105, "Control of Work":
105-01 Engineer's Authority.
The Engineer will make all decisions for the Department regarding the quality and acceptability of materials furnished, work performed, work progress, and contract interpretation. All communications by the Contractor with the Department, written or verbal, shall be in English. All references to costs, charges, prices, etc. shall be in United States dollars.
The Engineer may stop by written order any work or any part of the work under the contract if the methods or conditions are such that 1) unsatisfactory work might result; or 2) if improper material(s) or procedure(s) are being used; or 3) if the Contractor fails to comply with any requirement or provision of the contract document or with any State or Federal law or regulation; or 4) conditions are considered to be sufficiently deficient as to seriously affect the safety of the public or the workers employed; or 5) non-conformance with the maintenance and protection of traffic provisions is causing serious disruptions to traffic operations. The Contractor will not be entitled to any additional monetary compensation for such a work stoppage. Any work completed in violation of a written stop order will not be paid for even if subsequently determined to be acceptable.
Although the State could not disclaim notice of Vector's procedures with two inspectors and an engineer on site, supervisory control was denied. Willard Anderson, Vice President for Vector confirmed by his affidavit that Vector employees on the job took their work assignments and instructions from Vector superintendent, Tim Potter.
Labor Law § 200 is a codification of the common law duty of landowners to maintain their property in safe condition and provide a reasonably safe work environment. When the alleged wrongdoing involves the methods or procedures by which the work is being performed, rather than the condition of the premises, no liability will attach unless it is shown that the Defendant exercised supervisory control over the work and had notice, either actual or constructive of the dangerous work practices (see Comes v New York State Electric and Gas Corp., 82 NY2d 876; Allen v Cloutier Constr. Corp., 44 NY2d 290). General supervisory authority to oversee and inspect the work product to assure compliance with the contract and to correct unsafe practices alone is not sufficient to sustain a Labor Law § 200 cause of action (Comes, 82 NY2d at 877; Fassett v Wegmans Food Markets, Inc., 66 AD3d 1274; Fisher v WNY Bus Parts, Inc., 12 AD32d 1138).
Movant argues, in response, that the burden is slight on a late claim application, and he is in an inferior position without any discovery having been done to refute Defendant's positions. He further argues that the Standard Specifications, made part of the contract between the State and Vector, explicitly authorized the State to exercise the requisite supervisory control, and more recent case law indicates a Labor Law § 200 cause of action is established if Defendant had the authority to direct or control the work or had actual or constructive notice of the dangerous condition.
The Court interprets the law, even the recent case law differently, as many of the cases Movant cites involve defective conditions of the premises, rather than as here, alleged negligent methods and procedures used. In addition to having the authority to control and supervise the work, Defendant must have exercised such control and also have actual or constructive notice of the unsafe practices (see Fassett v Wegmans Food Markets, Inc., 66 AD3d 1274 [October 29, 2009], quoting Biance v Columbia Washington Ventures, LLC, 12 AD3d 926, 927 ["In order for Wegmans or Hunt to be found liable thereunder, 'it must be shown that they' 'exercised supervisory control over plaintiff's work and had actual or constructive knowledge of the unsafe manner in which the work was being performed'"] [emphasis supplied]).
Despite the lack of clear facts showing that the State not only had the supervisory authority, but exercised that authority over the breaking up of the concrete beams on this project, given the minimal burden, the Court cannot, at this point, find that the proposed Labor law § 200 cause of action is patently groundless, frivolous, or legally defective.
Movant also seeks to assert a cause of action for a violation of Labor Law § 241 (6). To set forth a cause of action for a violation of Labor Law § 241 (6), there must also be an assertion of a violation of a specific and applicable safety standard in the Industrial Code which is a proximate cause of the injuries (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 ). Here, Movant asserts violations of § 23-3.4 (c) (2) and (3) (12 NYCRR § 23-3.4 [c]  and [c] ). Section 23-3.4 is entitled "Mechanical Methods of Demolition" and subsection (c) specifies the zone of demolition. Subsection (c) (2) provides "[w]here a clamshell bucket is being used in demolition operations, a zone of demolition shall be maintained within 25 feet on both sides of the line of travel of the bucket." Defendant submits pictures of the "hoe-ram" attachment to the excavator and also pictures of various clamshell buckets. Clearly the hoe-ram is a completely different type of attachment with a different purpose than a clamshell bucket. Movant submits the affidavit of Richard L. Elander, a professional engineer, who submits his opinion that Movant was working too closely to the heavy equipment operation, and there should have been a protective zone around the work area. He opines that the hammer attachment is "the equivalent of a clamshell bucket" and a 25 feet work zone should have been established. In opposition, Mr. Anderson from Vector disputes Mr. Elander's position and points to the clear visual differences between the two attachments to show that they are not equivalent. Although the Court has to agree with Mr. Anderson that the equivalency of these two attachments, for purposes of this regulation are questionable, these conflicting opinions should not be resolved at this early stage (see Barotti v State of New York, Ct Cl, Siegel, J., June 29, 2007, Cl No. None, Motion No. M-73090, UID# 2007-042-515; Gressler v State of New York, Ct Cl, Lack, J., December 21, 2005, Cl. No. None, Motion No. M-70589, UID# 2005-033-161).
The alleged violation of the Industrial Code, § 23-3.4 (c) (3) provides: "[w]here other mechanical devices or equipment are being used in demolition operations, a zone of demolition shall be maintained in the area into which the building or other structure or any portion thereof may fall. Such zone of demolition shall equal at least one and one-half times the height of the building or other structure or any portion thereof above the ground, grade or equivalent level." Here, undisputedly, the concrete beam that was being broken up was approximately four feet off of the ground, and Movant was approximately eight feet away at the time he was injured. Even if this code section is applicable, which the Court questions, Movant was the appropriate distance away in accordance with the regulation. Thus there was no violation of this section.
The Court finds that Movant has met the minimum standard to show the potential meritoriousness of the claim for the Labor Law § 200 cause of action, and the Labor Law § 241 (6) cause of action - but only for the alleged violation of § 23-3.4 (c) (2).
The final factor for consideration is whether Movant has any other remedy. Here, although not a complete remedy, Movant will receive Workers' Compensation benefits.
Accordingly, based upon the foregoing, Movant's application is granted to the extent indicated above. Movant is directed to file and serve the proposed claim(1) and pay the required filing fee or submit the appropriate application in accordance with Court of Claims Act § 11-a within 45 days of the date this Decision and Order is filed with the Clerk of this Court. Filing and service should be in accordance with all applicable statutory requirements and Court rules.
March 1, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1. Notice of Motion.
2. Affirmation of Robert A. Quattrocci, Esquire, in support, with exhibits attached thereto.
3. Memorandum of Law dated August 31, 2009.
4. Answering affidavit of P. David Twichell, Esquire, in opposition, sworn to November 20, 2009.
5. Affidavit of John F. DeOrdio, P.E., sworn to November 19, 2009, with exhibit attached thereto.
6. Affidavit of Willard Anderson, Vice President of Vector Construction Corp., sworn to November 18, in support, with exhibits attached thereto.
7. Memorandum of Law on Behalf of Respondent (sic) dated November 20, 2009.
8. Reply Attorney Affirmation of Robert A. Quattrocci, Esquire, in support, dated November 23, 2009.
9. Reply Memorandum of Law dated November 23, 2009.
1. Movant should remove all references to a violation of the Industrial Code (12 NYCRR) § 23-3.4 (c) (3) from the proposed claim prior to filing and service.