New York State Court of Claims

New York State Court of Claims

TROTTO v. THE STATE OF NEW YORK, # 2021-059-059, Claim No. None, Motion No. M-96657


Case information

UID: 2021-059-059
Claimant short name: TROTTO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-96657
Cross-motion number(s):
Claimant's attorney: Wingate Russotti Shapiro & Halperin, LLP
By: Jason Rubin, Esq.
Defendant's attorney: Kiernan Trebach, LLP
By: Lori F. Graybow, Esq.
Third-party defendant's attorney:
Signature date: September 27, 2021
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


Movant Andrew Trotto moves for permission to file and serve a late claim alleging causes of action against the State of New York for violations of the Labor Law. Movant Saleela Rawangpai asserts a cause of action for loss of consortium.

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act 10 [6]). These factors are: (1) whether the delay in filing 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 state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act 10 [6]). The presence or absence of any one of these factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of a movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

Before addressing the six statutory factors, the Court must determine whether movants' causes of action are timely under CPLR Article 2 (Court of Claims Act 10 [6]). Movants' cause of action accrued on August 24, 2019 and the three year statute of limitations applicable to actions for personal injury applies (CPLR 214). As movants filed the instant motion on April 12, 2021, it is timely under CPLR 214.

Turning then to the first factor in the Court's late claim analysis, movants state that the claim was not filed within the limitations period set forth in the Court of Claims Act because movants were unaware that they could pursue a potential Labor Law claim against the State of New York. This excuse amounts to ignorance of the law, which is not an acceptable excuse for failing to timely file and serve a claim (Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv denied 99 NY2d 589 [2003]). Therefore, this factor does not weigh in movants' favor.

The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Here, movants argue that the State likely received notice of Mr. Trotto's accident from Live Nation Inc. (Live Nation), who operates the Jones Beach Theater, as notice to the State of any loss or damage from casualty is required by the license agreement between Live Nation and the State. Further, Mr. Trotto filed a worker's compensation claim against Live Nation within 90 days of his accident. Defendant counters that movants have not established that Live Nation actually gave notice of the accident to the State, nor can notice be imputed by Mr. Trotto's worker's compensation claim.

The Court agrees that movants have not established that the State had notice of the claim or an opportunity to investigate. Although movants reference the requirement of notice within the license agreement between Live Nation and the State, they have failed to establish that the State actually received notice of the accident (see Matter of Ryan v New York City Tr. Auth., 110 AD3d 902, 903-904 [2d Dept 2013] [State Department of Motor Vehicle's knowledge of accident cannot be imputed to the New York City Transit Authority]; Morrissey v State of New York UID No. 2000-015-100 [Ct Cl, Collins, J., Nov 13, 2000][notice to private theater manager at a State Park not actual notice to State]). Moreover, the filing of a worker's compensation claim does not constitute notice to the State (Gavigan v State of New York, 176 AD2d 1117, 1118-1119 [3d Dept 1991]).

As to prejudice, the proposed amended claim alleges that Mr. Trotto was injured by a forklift while dismantling a concert stage nearly two years prior to movants' filing the instant late claim application.(1) Therefore, the condition of the stage and worksite is clearly transitory in nature, resulting in prejudice to the State's ability to investigate the claim (see Malek v State of New York, 92 AD2d 659 [3d Dept 1983] [16-month delay in filing claim for damages sustained during highway construction caused prejudice to the State where the highway construction project was completed at the time of filing]). Based upon these factors, the Court finds that these three factors do not weigh in movants' favor.

As to the fifth factor, Mr. Trotto has received worker's compensation benefits, which is a partial remedy (Olsen v State of New York, 45 AD3d 824, 825 [2d Dept 2007] [workers' compensation benefits constitute an alternative remedy]; see also Kerber v State of New York, 70 Misc 3d 1207[A], 2020 NY Slip Op 51587[U] [Ct Cl 2020]; Phillips v State of New York, UID No. 2018-031-033 [Ct Cl, Minarik, J., Oct. 9, 2018]). However, the Court notes that Mr. Trotto's workers' compensation benefits constitute only a partial remedy and finds that this factor weighs in movants' favor (Smith v State of New York, 63 AD3d 1524 [4th Dept. 2009]).

Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "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 [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).

Defendant argues that the proposed claim lacks merit because it does not comply with Court of Claims Act 11 (b) and is, therefore, jurisdictionally defective. Specifically, the State argues that the proposed claim does not state with specificity the location of the accident. In reply papers, movants attach a proposed amended claim in which the location of the accident is alleged in greater detail. Because defendant submitted a surreply, the Court will consider the proposed amended claim (see Hanscom v Goldman, 109 AD3d 964, 965 [2d Dept 2013] [papers submitted for the first time in reply may be considered where the opposing party submits papers in surreply]). While defendant is correct that jurisdictional defects cannot be cured by amendment (Manshul v Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]), the Court does not yet have jurisdiction over a claim that has not been filed or served. Therefore, the Court will consider the proposed amended claim (see, Carlson-Leone v State of New York, UID No. 2020-045-045 [Ct Cl, Lopez-Summa, J., Sept 8, 2020]).

The proposed amended claim states that the accident occurred "in the parking lot/loading area north of the state, in the area marked with a red 'X' on the annexed aerial image" (Proposed Amended Claim 3). The attached image shows the area of the state where the accident occurred. Defendant does not argue that the location specified in the proposed amended claim is insufficient under Court of Claims Act 11 (b). Accordingly, the Court finds that the proposed amended claim complies with Court of Claims Act 11 (b).

Turning then to movants' Labor Law claims, the proposed amended claim alleges that at the time of the accident, Mr. Trotto was employed as a stagehand and was engaged in dismantling a concert stage, packing the stage and its contents into containers, and loading the containers into trucks. Four large unsecured containers were stacked on a forklift when the top container shifted and fell from a height of greater than 12 feet onto Mr. Trotto, causing severe injuries. The proposed amended claim alleges that defendant violated Labor Law 240 (1), which states:

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, 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.

In order to successfully assert a cause of action under Labor Law 240 (1), a claimant must establish that he was injured during "the erection, demolition, repairing, altering or painting of a building or structure" (Enos v Werlatone, Inc., 68 AD3d 713, 714 [2d Dept 2009]). Labor Law 240 (1) applies to injuries caused by falling objects being hoisted or secured in the absence or inadequacy of appropriate safety devices (Narducci v Manhassat Bay Assoc., 96 NY2d 259, 267-268 [2001]).

Defendant argues that Mr. Trotto was not engaged in any construction or demolition activity at the time of the accident. In support of this argument, defendant submits the affidavit of Adam Citron, the General Manager of the Jones Beach Theater (Affirmation in Opposition, Exhibit A). Citron avers that the Jones Beach Theater is an amphitheater with a "permanent stage" and that at the time of the accident, no construction or demolition work was performed in the general vicinity of the accident (Citron Aff., 5-6). Defendant argues that because the Jones Beach Theater consists of a permanent stage, Mr. Trotto could not have been dismantling the stage at the time of his accident. In reply, Mr. Trotto submits an affidavit in which he avers, at the time of his accident, he was dismantling a "flat platform" that sat atop the permanent stage at Jones Beach Theater and was not a permanent fixture (Affirmation in Reply, Exhibit G, p. 1). Mr. Trotto also avers that the cases that fell on top of him contained "rigging equipment" used to hang speakers and lighting (id. at 2).

In Finocchi v Live Nation Inc., 141 AD3d 1092 [4th Dept 2016], the Fourth Department held that questions of fact precluded summary judgment on the plaintiff's Labor Law 240 (1) claim where "there [were] issues of fact whether the work being performed by plaintiff at the time he was injured was ancillary to the demolition of the stage, a structure" (id. at 1094). The Court finds that the Finocchi case is similar to movants' proposed cause of action under Labor Law 240 (1) and establishes the appearance of merit. The case involving an accident occurring at a concert venue cited by defendant in opposition is distinguishable as it involved a plaintiff who was moving speakers, not dismantling a stage (see Travers v RCPI Landmark Props., LLC, 74 AD3d 956, 957 [2d Dept 2010], lv denied, 15 NY3d 710 [2010] [dismissing Labor Law 240 (1) claim where the plaintiff was moving speakers to their appropriate location on the stage]). Insofar as defendant submits an affidavit of a witness to the event alleging that the boxes that fell on Mr. Trotto contained instruments, not stage materials, (Affirmation in Opposition, Exhibit C), such affidavit does not defeat the appearance of merit of the proposed amended claim, which is a minimal burden for movants to meet on a late claim application (Rizzo v State of New York, 2 Misc 3d at 834; see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]).

Based upon the foregoing, the Court also finds that the record supports Ms. Rawangpai's derivative claim for loss of consortium.

Finally, the Court agrees with defendant that movants failed to establish the appearance of merit of the causes of action under Labor Law 200 and Labor Law 241 (6). The Court notes that movants do not dispute defendant's assertion that the appearance of merit has not been established for these causes of action.

Labor Law 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 353 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299 [1978]). The proposed amended claim is completely devoid of any factual allegations establishing that the State failed to provide a safe workplace in violation of its obligation under Labor Law 200. Moreover, "an implicit precondition to this duty is that the party to be charged with that obligation 'have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' " (Rizzuto, 91 NY2d at 352, quoting Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). Movants do not allege that the State had the authority to control the activity that caused Mr. Trotto's injuries. To the contrary, movants papers allege that Live Nation, not the State, was responsible for controlling the activity. Thus, movants have not established the appearance of merit as to the Labor Law 200 cause of action.

Labor Law 241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" for persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see Rizzuto, 91 NY2d at 348). Thus, a property owner must comply with the provisions of the State Industrial Code, Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York (see Ortega v Puccia, 57 AD3d 54, 60 [2d Dept 2006]). To state a claim under Labor Law 241 (6), movants must allege that defendant violated a specific rule or regulation and that Mr. Trotto's injuries were proximately caused by the violation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]). Movants have not alleged the violation of a specific rule or regulation, and have therefore failed to establish the appearance of merit as to the Labor Law 241 (6) cause of action.

Although four factors in the Court's late claim analysis weigh against movants, movants have established the crucial factor of the appearance of merit as to the Labor Law 240 (1) cause of action.

Therefore, upon consideration of the six factors enumerated in Court of Claims Act 10 (6), it is hereby:

ORDERED that movants' motion for late claim relief (M-96657) is GRANTED. Movants are directed to file the proposed amended claim attached as Exhibit F to movants' reply affirmation within sixty (60) days of the date that this Decision and Order is filed by the Clerk of the Court. The claim to be filed shall assert a cause of action under Labor Law 240 (1) only.

September 27, 2021

Hauppauge, New York


Judge of the Court of Claims

1. For reasons explained infra, the Court has reviewed the proposed amended claim attached to movants' Reply Affirmation as Exhibit F.