Opinion
# 2015-016-024 Claim No. 125413 Motion No. M-86260 Motion No. M-86261
05-18-2015
ROLANDO ARROYO and IVETTE ARROYO v. THE STATE OF NEW YORK and SUNY DOWNSTATE MEDICAL CENTER
Greg Garber, Esq. Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG Cartafalsa, Slattery, Turpin & Lenoff By: Louis A. Carotenuto, Esq.
Synopsis
Case information
| UID: | 2015-016-024 |
| Claimant(s): | ROLANDO ARROYO and IVETTE ARROYO |
| Claimant short name: | ARROYO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and SUNY DOWNSTATE MEDICAL CENTER |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125413 |
| Motion number(s): | M-86260, M-86261 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Greg Garber, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG Cartafalsa, Slattery, Turpin & Lenoff By: Louis A. Carotenuto, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | May 18, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Rolando Arroyo moves here for leave to file a late claim for injuries he states were sustained when struck on the head by steel studs which fell from a height of 45 to 50 feet while he was working on a construction site at the State University's Downstate Medical Center. The motion is opposed by the defendant State of New York (M-86261), and defendant further moves to dismiss the claim (M-86260).
Inasmuch as Ivette Arroyo's claim is derivative of her husband's, for ease of reference, "Arroyo" and "claimant" in the singular will refer to Rolando Arroyo; defendants will be referred to as "defendant."
The incident occurred in the morning of September 27, 2014. Mr. Arroyo was employed by Five Star Electric Corporation on a contract that its parent company, Tutor Perini Corporation, had with the State University Construction Fund (the "Fund") to construct a new building for the School of Public Health (exhibits A and B of defendant's Affirmation in Opposition).
Under section 10 (6) of the Court of Claims Act (the "Act"), the court decides a late claim motion by evaluating six factors, the presence or absence of any one of which is not dispositive: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious.
See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
The first three factors relating to notice, opportunity to investigate and prejudice are closely linked and may be considered together. Brewer v State of New York, 176 Misc 2d 337 (Ct Cl 1998).
The parties agree that the attorney general was served on December 30, 2014, which was beyond the 90-day limitation of the Act. The 90th day fell on Saturday, December 26, which means that the last day to serve was Monday, December 28. It is unlikely that much more, if anything, could have been done by the defendant to investigate the claim on two extra days between Christmas and New Year's.
There are two incident reports, annexed to the claim, which were filled out the day Arroyo was injured. They are fairly detailed, contain the name and phone number of the general foreman and list three workers who came on the scene right after impact. Thus, there are witnesses, including claimant, who can testify about the condition of the work site at the time. Defendant of course would have been entitled to send an investigator (and/or counsel) out to the site, but again, how much more could he or she learn, given the nature of this job, by having the incident reports in hand within 90 days, rather than a few days later. There was no substantial prejudice to the State. The Court finds that Mr. Arroyo has satisfied the notice, opportunity to investigate and prejudice factors.
As for the next of the six statutory factors, alternate remedy, the defendant contends that Arroyo could have brought, or could bring, an action against the Fund in Supreme Court. It might be noted, that inasmuch as the parent company of claimant's employer is the contracting entity and presumably general contractor, Arroyo would likely not have an action against such GC. The Court's determination below that the State can be sued in this forum does not mean that jurisdiction does not also lie in Supreme Court against the Fund. On balance, claimant does not satisfy this factor.
Claimant had some difficulties with the process server and attaches an affidavit from counsel's office staff on the genuine efforts they made to comply with the 90-day deadline (exh C to claimant's Affirmation in Support). However, for purposes of the Act, such would not generally qualify as an excuse. (Compare with Goldstein v State of New York, 75 AD2d 613 [(2d Dept 1980]).
The First Department has stated: "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists (citation omitted)" (Sands v State of New York, 49 AD3d 444 [1st Dept 2008]).
Defendant argues that this claim is "legally defective" because it is in reality a suit against the State University Construction Fund, which must be brought in Supreme Court.
Only the State of New York and certain other entities that are specified by statute may be sued in the Court of Claims, such as the Thruway Authority per Section 361-b of the Public Authorities Law. The Fund, while governed by three trustees all of whom are appointed by the Governor, is not such an entity - - section 373-a of the Education Law places jurisdiction of actions by or against the Fund in Supreme Court.
If legally defective, not only would the appearance of merit be absent, but the application for a late claim itself would have to be denied (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Arroyo's causes of action are based on Labor Law 240 and 241, which apply to construction work, and on Labor Law section 200, which is the codification of the common law duty to provide a safe place for workers (and members of the public that may be present). Sections 240 and 241 place certain duties upon "[a]ll contractors and owners and their agents," other than certain owners of one- and two- family dwellings. Whether a particular entity is subject to such duties is broadly interpreted; for example, the term "owner" is not limited to a title holder (Walp v ACTS Testing Labs, Inc./Div. of Bur. Veritas, 28 AD3d 1104 (4th Dept 2006). Given the Sands standard and the scope of sections 240 and 241, this Court concludes that Mr. Arroyo's claim is meritorious with respect to them. Labor Law section 200 generally implicates a more limited range of responsible actors, but on the record, it is premature to rule out that the claim can be legally based on section 200 as well. See Martinez v City of New York, 73 AD3d 993, 997-998 (2d Dept 2010), in which the Second Department denied summary judgment to the defendant City of New York on a section 200 cause of action.
In view of the foregoing, having reviewed the submissions and considered the statutory factors, IT IS ORDERED that claimant's motion No. M-86261 is granted, defendant's motion No. M-86260 is granted, and that within sixty (60) days of the filing of this Decision and Order, claimants shall serve and file a properly verified claim in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof. The Clerk of the Court is directed to dismiss claim No. 125413.
The following were reviewed: Motion No. M-86261 - from claimants, a Notice of Motion and Affirmation in Support (with exhibits A through D), and a Reply Affirmation; from defendant, an Affirmation in Opposition to Motion (with exhibits A and B). Motion No. M-86260 - from defendant, a Notice of Motion and Affirmation in Support (with exhibit A); from claimants, an Affirmation in Opposition (with exhibits A through D).
--------
May 18, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims