Opinion
# 2011-010-041 Motion No. M-80416
01-09-2012
DAVIS v. THE STATE OF NEW YORK
Synopsis
Movant's application for leave to serve and file a late claim denied - no appearance of merit, movant has another available remedy. Case information
UID: 2011-010-041 Claimant(s): GARY DAVIS Claimant short name: DAVIS 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-80416 Cross-motion number(s): Judge: Terry Jane Ruderman STANLEY LAW OFFICES Claimant's attorney: By: Robert A. Quattrocci, Esq. HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: John Healey, Assistant Attorney General Third-party defendant's attorney: Signature date: January 9, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-3 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Affirmation, Memorandum of Law and Exhibits.......1
Attorney's Affirmation in Opposition and Exhibit..................................................2
Attorney's Reply Affirmation and Memorandum of Law........................................3
Movant seeks leave to serve and file the proposed claim (Movant's Ex. B). The proposed claim alleges that on August 24, 2010, movant was employed by Lancaster Development Inc. as a heavy equipment operator on a New York State project on State Route 17 in the City of Middletown, when he was injured while dismounting an excavator. Movant allegedly slipped and fell on an accumulation of oil and could not prevent himself from falling because the handrail on the excavator was broken. According to the proposed claim, "[t]he oil was caused by an o-ring breaking on the machine causing the oil spill" (Movant's Ex. B, ¶3). In support of his application, movant submits undated photographs of the purported excavator (Movant's Ex. C) along with his own affidavit wherein he states that:
"4. The oil spill occurred approximately one (1) week before the accident and [sic] reported to Respondent, but was never properly cleaned up.(Movant's Ex. A). Movant did not submit a copy of the purported accident report. While page two of movant's unpaginated Memorandum of Law asserts that "witnesses still exist to the accident," no witnesses' statements were submitted nor were any witnesses named or otherwise identified. Movant also failed to submit any medical records, which leaves only movant's vague claim of injuries and does not show the nature of his injuries, the treatment he required, or the necessary link between the accident and any alleged injuries. In opposition to movant's application, the State submitted the affidavit of A. Rashid Shariff, P.E., the Engineer-In-Charge employed by the New York State Department of Transportation on the date of the accident. Shariff asserts that there is no record of any reported accidents involving movant or this allegedly defective equipment (Defendant's Ex. A).
5. The broken handrail on the excavator existed for several weeks before this accident.
6. Representatives and employees of New York State were on site everyday and performed inspections of the worksite, and knew about both the oil spill and broken handrail prior to this accident.
* * *
8. Immediately after the fall I notified my foreman and filled out an accident report, a copy of which, upon information and belief, was forwarded to the State.
9. The following day I sought treatment for injuries to my left shoulder, neck, back and left leg."
The determination of a motion for leave to serve and file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).
The Court has considered the above six factors. First, movant offers no excuse for his failure to timely commence an action based upon an accident which allegedly occurred more than a year before this application was made (see Olsen v State of New York, 45 AD3d 824 [ignorance of the law not a valid excuse]). It is noted that prejudice is more likely to result in cases where a potential claim involves conditions which are transitory in nature such as the changing conditions of a construction site (see Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [State would be prejudiced by delay because of changing nature of construction site]). Moreover, merely submitting undated photographs of the allegedly defective equipment does not establish either the appearance of merit of the proposed claim or that the alleged condition still exists more than a year after the alleged date of the accident (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine-month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]). While movant asserts that he notified his foreman, not a State employee, of the accident and filled out an accident report, movant failed to include a copy of the report and has not established that the State was notified of the accident. Indeed, the State's opposition papers include an affidavit of the Engineer-In-Charge, who searched the project records and did not find any accident reports for this project and he had no recollection of ever being informed of movant's accident (Defendant's Ex. A, ¶¶5, 6). Thus, the Court finds that movant's delay has substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Thus, while movant's proposed claim may state a cause of action under Labor Law §241(6), on an application for leave to serve and file a late claim, movant's burden is not met merely by stating a cause of action (see Misicki v Carodonna, 12 NY3d 511 [power-operated heavy equipment with a missing side handle states a cause of action under 241(6) based upon an alleged violation of 12 NYCRR 23-9.2(a) Maintenance]; Cooper v State of New York, 72 AD3d 633 [a Labor Law 241(6) claim based on violation of 12 NYCRR 23-1.7(d) Slipping hazards was sufficiently stated where worker slipped on foreign substance and fell from elevated scissor lift]). Movant must meet the heavier burden of showing the appearance of merit of his proposed claim. Movant's own unsubstantiated allegations are not sufficient to show an appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]; Witko v State of New York, 212 AD2d 889, 891) and the undated photographs of an excavator did not aid movant in meeting his burden (see Matter of Gallagher v State of New York, 236 AD2d 400, supra). Movant did not submit a copy of an accident report, a witness statement, or any other evidence establishing that the State had actual notice of the alleged defects or that the defects existed for a sufficient period of time to impute constructive notice to the State (see Salsinha v Malcolm Pirnie, Inc., 76 AD3d 411 [Labor Law 241(6) and 12 NYCRR 23-9.2(a) imposes an affirmative duty, upon discovery or actual notice, to correct any defects in equipment]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]).
Additionally, to the extent that the proposed claim asserts a cause of action for common law negligence and a violation of Labor Law Section 200 based upon the excavator's allegedly broken handrail and oil leak from the broken o-ring, the Court finds that, unlike the cases cited by movant, these allegations constitute a "defect not in the land itself but in the equipment or its operation" and therefore require a showing of the State's supervisory control over the injury-producing work (see Martinez v Tambe Electric, Inc., 70 AD3d 1376, 1377 [internal quotations omitted] [common law liability and a Labor Law §200 claim based upon defective equipment or its operation requires a showing of supervisory control over the injury-producing work]). Movant has not shown that the State had the requisite supervisory control to establish the appearance of merit of proposed causes of action under the common law or Labor Law §200 (see Olsen v State of New York, 45 AD3d 824, supra [late claim application denied where movant failed to adequately set forth sufficient facts demonstrating that his claim was meritorious]).
Finally, it is also noted that movant has another available remedy via Workers' Compensation and has failed to provide any information as to the adequacy of those benefits (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118); Olsen v State of New York, 45 AD3d 824, supra [late claim denied where alternative remedies, including workers' compensation benefits, are available to the claimant]).
Accordingly, for the aforenoted reasons, and, most significantly, due to the failure to show an appearance of merit of the proposed claim, movant's motion for leave to file and serve a late claim is DENIED (see Langner v State of New York, 65 AD3d 780 [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
January 9, 2012
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims