Opinion
# 2012-041-062 Motion No. M-81030
08-01-2012
LAWRENCE PHELPS v. THE STATE OF NEW YORK
Synopsis
Application to file late claim is granted as allegations provide cause to believe that a meritorious claim for Labor Law violations resulting in personal injury may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim. Case information
UID: 2012-041-062 Claimant(s): LAWRENCE PHELPS Claimant short name: PHELPS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-81030 Cross-motion number(s): Judge: FRANK P. MILANO SMITH, SOVIK, KENDRICK & SUGNET, P.C. Claimant's attorney: By: Kevin E. Hulslander, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: August 1, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
The proposed claim alleges that defendant is liable, pursuant to Labor Law §§ 240 (1) and 241 (6) for injuries and damages sustained by claimant on July 22, 2011 when he fell from a scaffolding truck while "employed as a laborer by P.S. Bruckel, Inc. . . . on the New York State Thruway at the Route 22 bridge construction site."
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The proposed claim accrued on July 22, 2011. CPLR § 214 (5) provides a three-year period to commence an action for personal injury and the application is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; 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; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], appeal denied 78 NY2d 852 [1991]).
Claimant has not offered a reasonable excuse, in admissible form, for the delay in timely filing the claim, although his attorney makes reference in a memorandum of law to claimant's purported belief that his recovery was limited to workers' compensation benefits.
Claimant's ignorance of the law regarding service and filing of a claim does not constitute a reasonable excuse for failing to timely file and serve a claim (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]).
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the 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, Inc., 55 NY2d at 981).
Claimant has not shown that the State of New York had notice of the essential facts constituting the claim nor has he shown that the state had an opportunity to investigate the circumstances underlying the claim. The accident reports provided in the motion papers were apparently prepared and maintained by the New York State Thruway Authority, a public corporation legally separate from the State of New York though also subject to the jurisdiction of the Court of Claims (see Public Authorities Law §§ 352 and 361-b; Court of Claims Act § 11 [a] [ii]). On the other hand, the delay between the expiration of the claim filing period on October 20, 2011 and the service of the application on or about February 9, 2012 is minimal and defendant has been provided the contemporaneous accident reports prepared and maintained by the New York State Thruway Authority.
While a workers' compensation claim offers a partial alternative remedy to claimant (a remedy that provides claimants no opportunity for recovery of damages for pain and suffering), it is not determinative of the claimant's application (see Matter of Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999]; Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]).
Defendant has not asserted that it would be prejudiced by permitting the late filing and service of a claim.
Section 10 (6) requires that the proposed claim not be "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 Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered factual opposition to the allegations of the affidavits supporting the late claim application as to how claimant fell and those allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
Labor Law § 240 (1) provides as follows:
"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."
Labor Law § 241 (6) states that:
"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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
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."
It is clear that the term "owner" may encompass a nontitleholder "'who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his . . . benefit'" (Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009], quoting Copertino v Ward, 100 AD2d 565, 566 [1984]; see Wheeler v Citizens Telecommunications Co. of New York, Inc., 74 AD3d 1622, 1624 [3d Dept 2010]).
Defendant has provided no factual opposition, by a person with specific personal knowledge, to the allegation of the proposed claim that the "subject accident occurred on a State construction site." Defendant's attorney asserts, at para. 7 & 8 that:
"7. The New York State Thruway Authority has provided me with a Certificate of Insurance . . . covering the period from 3-01-2011 to 3-01-2012. This Certificate of Insurance indicates that the New York State Thruway Authority is provided additional insured status with respect to . . . [the] project or contract number made reference to in Claimant's Exhibits "A" and "B" annexed to the motion papers . . .
8. I have been unable to locate any information regarding other contract documents indicating any nexus between Claimant's employer and a State of New York agency which would have been involved in construction on the New York State Thruway. Based on this lack of information, I do not believe the State of New York is an appropriate defendant."
The belief of defendant's attorney that "the State of New York is [not] an appropriate defendant," a belief based upon a "lack of information," is insufficient to defeat claimant's application.
The Court finds that the proposed claim, together with the attached affidavits and documents, alleging that the "subject accident occurred on a State construction site" and was caused by the defendant's failure to comply with provisions of the Labor Law, is not patently without merit (see Dippolito reminding that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits").
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve the claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.
August 1, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed February 9, 2012;
2. Affidavit of Kevin E. Hulslander, sworn to February 6, 2012, and annexed exhibits, including proposed claim;
3. Affidavit of Lawrence Phelps, sworn to February 6, 2012;
4. Affidavit of Joan Matalavage, sworn to April 20, 2012, and annexed exhibit;
5. Reply Affidavit of Kevin E. Hulslander, sworn to May 21, 2012.