Opinion
# 2012-037-007 Motion No. M-80584
02-06-2012
GONZALEZ v. NEW YORK STATE THRUWAY AUTHORITY and STATE OF NEW YORK
Synopsis Case information
UID: 2012-037-007 ANGEL GONZALEZ and Claimant(s): JOANN GONZALEZ Claimant short GONZALEZ name: Footnote (claimant name) : NEW YORK STATE THRUWAY AUTHORITY and Defendant(s): STATE OF NEW YORK Footnote The caption has been amended, sua sponte, to reflect the New (defendant name) York State Thruway Authority and the State of New York as the : only properly named Defendants. Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number M-80584 (s): Cross-motion number(s): Judge: JEREMIAH J. MORIARTY III Cantor, Dolce & Panepinto Claimant's attorney: By: Marc C. Panepinto, Esq. and James A. Verrico, Esq. Hon. Eric T. Schneiderman Defendant's New York State Attorney General attorney: By: William D. Lonergan Assistant Attorney General Third-party defendant's attorney: Signature date: February 6, 2012 City: Buffalo Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court with respect to Movants' motion for permission to late file a claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion dated October 17, 2011 and Attorney Affirmation of Marc C. Panepinto, Esq. dated October 21, 2011, with annexed Exhibits A-D;
2. Affidavit of Assistant Attorney General William D. Lonergan sworn to November 30, 2011, with annexed Exhibit A;
3. Reply Affirmation of James A. Verrico, Esq. dated December 12, 2011, with annexed Exhibits E-F;
4. Supplemental Attorney Affirmation of James A. Verrico, Esq. dated December 15, 2011.
The proposed claim alleges causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) as a result of injuries allegedly sustained by Movant on July 16, 2010 when he fell and was struck by construction cones while in the bed of a moving truck during the course of his employment with Union Concrete and Construction (UCC) for a highway construction project on the New York State Thruway.
The proposed claim of Joann Gonzalez is derivative only and all references to Movant shall refer to Angel Gonzalez unless otherwise indicated.
Court of Claims Act §10(6) grants the Court discretion to permit the late filing of a claim upon consideration of the following 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."
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act §10(6) requires that a motion to late file a claim be made "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." Since the proposed claim asserts a claim for personal injuries, the three-year Statute of Limitations set forth in CPLR §214 applies, and the motion is therefore timely.
Turning to the statutory factors, this Court has considerable discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]), the enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policeman's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]).
The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. In his affirmation, Movant's counsel avers that Movant did not learn of the nature and extent of his knee injuries until March, 2011 and did not consult with counsel until October, 2011 which resulted in the delay in filing a claim. Ignorance of the law is not a reasonable excuse for the failure to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]) and Movant does not offer any legally acceptable excuse for the delay in filing his claim. Accordingly, this factor weighs against the granting of the motion. The lack of an excusable delay is, however, only one of the factors to be considered by the Court.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movants allege that Defendants had notice of the essential facts constituting the claim as well as an opportunity to investigate the circumstances underlying the claim because Movant reported the accident shortly after it occurred and that information was passed on to Defendants' representatives at the job site. Defendants respond that while Movant may have notified his union representative there is no documented proof that the State of New York or the New York State Thruway Authority (NYSTA) had notice or an opportunity investigate so as not to be prejudiced by the granting of this motion. Nevertheless, Defendants have proffered no evidence of actual prejudice. Under these circumstances, no prejudice will befall Defendants in the event late claim relief is granted.
The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). It is Movants' 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 Movants to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movants to late file a claim (id. 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]). In order to sustain a Labor Law §200 cause of action, a claimant must be able to establish that Defendants, as owners, exercised some degree of supervision or control over the work site and had actual or constructive notice of the dangerous condition (Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]; Miller v Wilmorite, Inc., 231 AD2d 843 [1996]). Here, no showing has been made in the proposed claim or the moving papers that either Defendant had actual or constructive notice of an unsafe condition, or that they exercised any degree of supervision or control over the work site. Accordingly, the Court finds that Movants have not established an appearance of merit with regard to their Labor Law § 200 claim or under the theory of common law negligence (Matter of Allen v State of New York, 2002 WL 31940720 [2002], affd 4 AD3d 835 [2004]).
Movant also alleges a violation of Labor Law § 240 (1), which imposes a nondelegable duty on owners and contractors to implement appropriate safety measures to prevent gravity-related accidents, including those accidents in which a worker is struck by a falling object that was not adequately secured (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Here, Movant alleges that he was injured by construction cones which were stacked in the back of the truck where he was standing and fell on his leg when the truck driver abruptly stopped the vehicle. Although there will be questions regarding the applicability of Labor Law § 240 (1) to this accident, for the purposes of this application Movants have alleged at least the appearance of a meritorious claim pursuant to Section 240 (1), which imposes a nondelegable duty upon an owner to provide safety devices to protect workers from the danger of falling objects (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]).
Turning to the Labor Law §241(6) cause of action, in order to impose liability under this statute it must be shown that Movant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or specification (see Ross v Curtis-Palmer Hydro-Elec. Co., supra; Comes v New York State Elec. & Gas Corp., supra). In support of their Section 241 (6) cause of action, Movants allege a violation of Industrial Code 12 NYCRR §23-9.7 (c) (d) (e) which provides as follows:
(c) Loading. Trucks shall not be loaded beyond their rated capacities and all loads shall be trimmed before the trucks are moved. Loads that are apt to become dislodged in transit shall be securely lashed in place.
(d) Backing. Trucks shall not be backed or dumped in places where persons are working nor backed into hazardous locations unless guided by a person so stationed that he sees the truck drivers and the spaces in back of the vehicles.
(e) Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.
This section has been held sufficiently specific to support a Labor Law § 241 (6) claim and appears to be applicable to the facts alleged in the proposed claim (Clause v du Pont De Nemours & Co., 284 AD2d 966 [2001]; Borowicz v International Paper Co., 245 AD2d 682 [1997]). Thus, Movants' Labor Law § 241 (6) cause of action has at least the appearance of merit based upon the alleged violation of the aforementioned section of the Industrial Code.
Regarding the existence of an alternative remedy, Movant should be entitled to benefits under the Workers' Compensation Law. While the right to receive Workers' Compensation benefits may provide only a partial remedy (Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [1988]), it may still serve as an additional remedy (Nicometti v State of New York, 144 AD2d 1036 [1988], lv denied 73 NY2d 710 [1989]). While this final factor weighs against Movants, it is not determinative (see Matter of Lockwood v State of New York, 267 AD2d 832 [1999]).
Based on the foregoing, and upon weighing and considering all of the factors set forth in the Court of Claims Act § 10 (6), it is the opinion of this Court that Movants be permitted to file their proposed claim, limited to the extent that such claim seeks damages for violations of Labor Law § 240 (1) and § 241 (6) based upon a violation of Industrial Code 12 NYCRR § 23-9.7.
Accordingly, it is
ORDERED, that Motion M-80584 is hereby granted, in part, to the extent that Movants are permitted to file and serve their claim against the New York State Thruway Authority and the State of New York, except that any cause of action based upon violations of Labor Law §200 or under the theory of common law negligence must be deleted.
Movants are directed to file their claim with the Chief Clerk of the Court within forty-five (45) days of the date of filing this Decision and Order and serve a copy of the claim upon the Attorney General, with such filing and service to be in accordance with the requirements of Court of Claims Act §§ 10, 11 and 11-a and the Uniform Rules for the Court of Claims.
February 6, 2012
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims