Opinion
2020-054-035
11-13-2020
Theodore KERBER and Rebecca Kerber, Claimants, v. STATE of New York and New York State Department of Corrections, Defendants.
For Claimant: MARTIN HARDING & MAZZOTTI, LLP (By: Adam C. Hover, Esq.) For Defendant: HON. LETITIA JAMES, Attorney General for the State of New York (By: Dian Kerr McCullough, Assistant Attorney General)
For Claimant: MARTIN HARDING & MAZZOTTI, LLP (By: Adam C. Hover, Esq.)
For Defendant: HON. LETITIA JAMES, Attorney General for the State of New York (By: Dian Kerr McCullough, Assistant Attorney General)
Walter Rivera, J.
Theodore Kerber (hereinafter movant) and Rebecca Kerber seek leave for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges violations of Labor Law §§ 240 (1), 241 (6) and 200 for injuries movant allegedly sustained on September 25, 2019, when a Genie man lift malfunctioned during the course of movant's employment as a sheet metal worker with the Alvion Group, Inc. (Alvion). The project concerned the construction, renovation, rehabilitation and refurbishing of the roof of the chapel building located at the Taconic Correctional Facility (Taconic), which is owned by defendant State of New York. According to the proposed claim, the State entered into a contract with Geomatrix Installation, Inc. and/or Geomatrix Services, Inc. (Geomatrix) for the project and Alvion was engaged as a subcontractor to perform work on the chapel. There are no allegations in the proposed claim that refer to Rebecca Kerber or purport to assert a derivative claim.
In addition to the proposed claim, movant submits his own affidavit in support (Kerber Aff.), an affirmation of counsel, a memorandum of law, correspondence between counsel and New York State Department of Corrections and Community Supervision (DOCCS) (Aff. in Supp., Exs. A, B), as well as responses by DOCCS to Freedom of Information Law (FOIL) requests for maintenance contracts and incident reports pertaining to Taconic made by movant's counsel (Aff. in Supp., Ex. C). The State opposes the application on all of the statutory grounds. In support of its opposition, the State submits the affidavit of Christopher Halse, who is employed by Alvion in the position of Superintendent (Aff. in Opp., Ex. A [Halse Aff.]), as well as a Daily Report prepared by Halse on the day of the alleged incident (Aff. in Opp., Ex. A ). At the time of the alleged incident, Halse was the Superintendent for a two-man crew that included movant.
The late claim application was timely filed within the relevant statute of limitations, and the Court therefore has jurisdiction to entertain the late claim application under Court of Claims Act § 10 (6). 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 [1982] ).
With respect to the existence of a valid excuse for movant's failure to timely serve and file a claim, movant appears to concede in his memorandum of law that he does not have an acceptable excuse and takes the position that his application should nevertheless be granted because the State had notice of the incident and that his causes of action are meritorious. Although movant states that to this date his FOIL requests have yet to be fully addressed, he does not explicitly proffer this as an excuse for his untimeliness. However, to the extent that it could be construed as his excuse, movant contacted counsel just days after the incident and, despite having knowledge of the of accident and the identity of the State as a defendant, as evidenced by correspondence with DOCCS on October 7 and 17, 2019 (Aff. in Supp., Exs. A, B), a claim was not timely served and filed. Moreover, to the extent that counsel was investigating the matter, a timely served Notice of Intention to File a Claim could have been served upon the State within 90 days of the alleged incident, which would have extended movant's time to serve and file a claim for two years after the date of the incident (see Court of Claims Act § 10 [3] ). This amounts to law office failure, which is not a valid excuse for purposes of Court of Claims Act § 10 (6) (see Casey v. State of New York , 161 AD3d 720 [2d Dept 2018] ). This factor, therefore, weighs against granting the late claim application.
Whether the State had notice of the essential facts, had an opportunity to investigate, or would be prejudiced by the granting of the within late claim application, are closely related and will be considered together (see Brewer v. State of New York , 176 Misc 2d 337, 342 [Ct Cl 1998] ). Movant contends that the State had timely actual notice of the incident when DOCCS was sent letters on October 7 and 17, 2019, placing the State on notice that injuries were sustained by movant on September 25, 2019 and requesting that any information concerning the accident be preserved. Movant argues, therefore, that the State would not be substantially prejudiced by the delay.
In opposition, the State asserts that at no time on the date of the alleged incident were any accidents witnessed or documented, nor was notice of an injury given to movant's employer Alvion, or Halse, his direct supervisor. In this regard, the State points to Halse's affidavit, in which he states that at "no time on September 25, 2019, or anytime after, did anyone including [movant], inform me that he or anyone else was injured. No accident reports were filed on behalf of [movant] or anyone else because there was no accident" (Halse Aff. ¶ 8).
In the reply affirmation, movant's counsel argues that the letters of October 7 and 17, 2019 provided more than sufficient notice to allow an investigation and in fact, the State obtained an affidavit from Halse, who was an eyewitness to the alleged incident. Movant also notes that the State failed to put forth any argument as to how it would be prejudiced. The Court finds that even though Halse's version of events is in stark contrast to the allegations set forth in the proposed claim, movant has established that the State had notice of the essential facts and had an opportunity to investigate the matter. The Court further finds that the State has failed to counter movant's assertion that the delay has not prejudiced the State in any significant way or that the State would be prejudiced by the granting of the late claim application. These three factors, therefore, weigh in favor of granting the late claim application.
Of the Court of Claims Act § 10 (6) factors, the appearance of merit is the most significant, because to permit the filing of "a legally deficient claim which would be subject to immediate dismissal" would be "futile" ( Prusack v. State of New York , 117 AD2d 729, 730 [2d Dept 1986] ; see also McCarthy v. New York State Canal Corp. , 244 AD2d 57 [3d Dept 1998] ). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of establishing an appearance of merit of the proposed claim (see Nyberg v. State of New York , 154 Misc 2d 199 [Ct Cl 1992] ), and mere conclusory allegations of wrongdoing do not suffice (see Witko v. State of New York , 212 AD2d 889, 891 [3d Dept 1995] ).
This factor is assessed under the twofold test set forth in Matter of Santana v. New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977] ). To meet this test: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" ( id. at 11 ; see also Sands v. State of New York , 49 AD3d 444 [1st Dept 2008] ). As noted, the proposed claim alleges violations of sections 240 (1), 241 (6) and 200 of the Labor Law. The Court will address each section.
I. Labor Law § 240 (1)
Labor Law § 240 (1) "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" ( Saint v. Syracuse Supply Co. , 25 NY3d 117 [2015] ). Section 240 (1) "applies to both ‘falling worker’ and ‘falling object’ cases" ( Narducci v. Manhasset Bay Assoc. , 96 NY2d 259, 267 [2001] ). Labor Law § 240 (1), however, does not encompass every accident connected in some tangential way with the effects of gravity and "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)" (id. ).
The proposed claim gives two separate accounts of the accident. First, it alleges that movant was performing his work in a Genie man lift "when the Genie man lift malfunctioned and broke causing a rapid descent and violently throwing claimant around the inside of the bucket of the lift" (Proposed Claim, ¶ 3 [sic] ). The proposed claim also alleges that "[u]pon positioning the lift to a lower position, the lift malfunctioned and a piece broke of the lower arm of the lift causing the basket to violently shift and throw [movant] around the bucket sustaining permanent and serious injuries" (id. at 5). Movant, in his affidavit, mirrors the above language (Kerber Aff. ¶¶ 4, 5). Movant's memorandum of law contains the following version: "[movant] was positioned on a Genie man lift above the ground while he was performing said work when the Genie man lift malfunctioned causing the basket to violently shift and throw [movant] around the bucket and result[ed] in serious injuries" (Cl. Memo., point II [i]).
The paragraphs are mislabeled. This quoted material is contained in what should be paragraph 4.
In its opposition, the State argues that the two versions of the incident are contradictory (Aff. in Opp. ¶¶ 15, 16). In his reply papers, movant does not address the State's argument. Rather, movant merely states that he "is exactly the type of worker the § 240 (1) was enacted to protect. The happening of the incident in question in [sic.] undisputed, whether there are differences in the specific heights etc. is irrelevant at this juncture and are a matter to be addressed through discovery" (Reply ¶ 9). Movant's assertion that the incident occurred is "undisputed" is, however, at odds with Halse's statement that "there was no accident" (Halse Aff. ¶ 8), and there is no mention in the Daily Report prepared by Halse on the day of the alleged incident that anything out of the ordinary occurred (Aff. in Opp., Ex. B). Moreover, depending on which version of events is considered, the side to side horizontal movement of the man lift is only tangentially related to the effects of gravity, and is not caused by the limited type of elevation-related hazards within the purview of Labor Law § 240 (1) (see Gasques v. State of New York , 59 AD3d 666, 667 [2d Dept 2009] ; Toefer v. Long Is. R.R. , 4 NY3d 399, 408 [2005] ). Finally, while the State's eyewitness affirms that an accident did not occur, movant does not submit a physician's affidavit or any medical records substantiating a causal connection between the alleged incident and movant's claimed injuries.
The Court finds that movant's submission with respect to his Labor Law § 240 (1) cause of action is conclusory, and what proof there is presents an inconsistent and contradictory version of the events. Accordingly, movant has failed to establish an appearance of merit of his Labor Law § 240 (1) cause of action.
II. Labor Law § 241 (6)
Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. To make out a claim under section 241 (6), claimant must show that defendant violated a rule or regulation promulgated by the Commissioner of the Department of Labor in the Industrial Code ( Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 501-502 [1993] ), where such rule constitutes a "specific, positive command" or a "concrete specification" (Toefer v. Long Is. R.R. , 4 NY3d at 40 [citations omitted]).
The proposed claim alleges violations of the following Industrial Code provisions: 12 NYCRR 23—5.1 (f), 23—9.2 (a), and 23—9.6 (a) (1) and (a) (4).
• Section 23—5.1 (f), which concerns scaffold maintenance and repair, is not sufficiently specific to support a cause of action pursuant to Labor Law § 241 (6) (see Pontes v. F & S Contr., LLC , 146 AD3d 829, 830 [2d Dept 2017] ).
• Section 23—9.2 concerns the "[g]eneral [r]equirements" for power operated equipment. In Misicki v. Caradonna (12 NY3d 511 [2009] ), the Court of Appeals held that the first two sentences of section 23—9.2 (a) were not specific enough to permit recovery under section 241(6), but determined that the third sentence of section 23—9.2 (a), which requires that "[u]pon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement" mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and therefore can support a Labor Law § 241 (6) cause of action ( id. at 520-521 [quotations and citation omitted]).
• Section 23—9.6 concerns the use of aerial baskets. Paragraph (a) states that, "[p]rior to the use of an aerial basket the operator shall make a daily inspection of the equipment." Subparagraph (a) (1) lists what items the inspection should include, and subparagraph (a) (4) states that all defects found during the inspection "which may affect the safe operation of the aerial basket shall be corrected before such aerial basket is placed in operation." This regulation has been determined to be specific enough to support liability under Labor Law § 241 (6) (see Corral v. Outer Marker Global Steel, Inc. , 2011 WL 4434085 * 5 n 6 [ED NY 2011] ; citing Scott v. T. Moriarty & Son, Inc. , 2010 NY Slip Op 30966[U] ).
With respect to the foregoing regulations, movant asserts that the "evidence here shows that the Genie man lift was not properly inspected for wear and tear or unsafe conditions, and that failure to perform such inspections resulted in the malfunction of the lift and [movant's] injuries" (Cl. Memo., point II [ii]).
The State correctly notes that movant has proffered no evidentiary support for his Labor Law § 241 (6) claim. While movant need not make out a prima facie case at this juncture in the proceedings, movant must make some evidentiary showing in order to demonstrate an appearance of merit (see Hyatt v. State of New York ,180 AD3d 764, 766 [2d Dept 2020] ).
Moreover, as pointed out by the State, section 23-9.2 (a) requires "actual notice—of a structural defect or unsafe condition" ( Misicki , 12 NY3d at 521 ), and here, there is no evidence or allegation of actual notice of any alleged defect (Aff. in Opp. ¶ 21). With respect to section 23-9.6, the State argues that there is no evidence that the man lift was not inspected by the "operator," and that movant failed to provide the identity of the operator (presumably movant or his co-worker). In fact, Halse attests that after a piece of metal fell from the man lift and landed on the ground, he and his crew checked the man lift and found it fully safe and functional and continued to use the man lift that day without incident (Halse Aff. ¶¶ 5, 6). And as already noted, section 23-5.1 (f) is not sufficiently specific to support a Labor Law § 241 (6) claim.
In his reply papers, movant does not address the issues raised by the State and merely argues that his proposed claims are meritorious and that a valid cause of action exists under this section of the Labor Law (Reply ¶ 10).
The Court therefore finds that movant's submission has failed to establish the appearance of merit for his proposed Labor Law § 241 (6) cause of action.
III. Labor Law § 200
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v. L.A. Wenger Contr. Co. , 91 NY2d 343, 352 [1998] ; Medina-Arana v. Henry Street Property Holdings, LLC , 2020 WL 5807367 [2d Dept 2020] ). Under the statute, cases fall in to two general categories. A violation may arise from 1) the dangerous or defective condition of the premises, or 2) as the result of the means and methods of the work being performed.
Where the condition of the worksite is at issue, a property owner may be liable if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Azad v. 270 5th Realty Corp. , 46 AD3d 728, 730 [2d Dept 2007] ). However, a property owner's failure to provide adequate equipment is not a basis for imposing liability on the property owner for creating a dangerous condition on the premises (see Ortega v. Puccia , 57 AD3d 54, 62 [2d Dept 2008] ; Persichilli v. Triborough Bridge & Tunnel Auth. , 16 NY2d 136, 145 [1965] ).
In contrast, when a claim arises out of alleged defects or dangers in the methods or materials of the work, including the equipment used, recovery against the owner cannot attach under the statute "unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" ( Ortega , 57 AD3d at 62 ; see also Ross , 81 NY2d at 505 ). For purposes of Labor Law § 200, a "defendant has the authority to supervise or control the work when that defendant bears the responsibility for the manner in which the work is performed" ( Ortega , 57 AD3d at 62 ). General supervisory authority to oversee the progress of the work is insufficient to impose liability (see Sullivan v. New York Athletic Club of City of NY , 162 AD3d 955 [2d Dept 2018] ), and notice alone of an unsafe working condition, without an actual exercise of supervisory control, is insufficient to impose liability under the means and methods analysis ( Ortega , 57 AD3d at 61 ). Here, the alleged cause of movant's injury falls into the means and methods category.
The State points out that movant has failed to submit any evidence that would indicate that the State had supervisory control over the work movant was performing. In his affidavit, Halse states that present on the worksite were the Geomatrix site supervisor, Halse's crew, and correction officers guarding the area (Halse Aff. ¶ 7). In movant's affidavit, he makes no mention that State employees supervised or controlled the work done. In his reply papers, movant does not attempt to refute the arguments posed by the State and merely makes the same general assertion that he did with respect to the proposed section 241 (6) cause of action, to wit, that his claims are meritorious and that a valid cause of action exists. Accordingly, movant has failed to demonstrate the appearance of merit of his proposed Labor Law § 200 cause of action.
In sum, the Court finds that movant's submission fails to meet the Santana standard, and does not establish the appearance of merit for the alleged violations of Labor Law §§ 240 (1), 241 (6) and 200. While the State, in its opposition, raises a number of cogent arguments that challenge movant's assertions that the proposed causes of action have the appearance of merit, movant, in his reply, for the most part, merely repeats the arguments made in the initial motion papers, or does not address the pertinent issues in sufficient detail. This factor, therefore, weighs heavily against granting the late claim application.
Finally, as to the availability of an alternate remedy, it appears that movant may have at least a partial remedy under the Workers' Compensation Law (see Olsen v. State of New York , 45 AD3d 824 [2d Dept 2007] ). This factor, therefore, weighs against granting the late claim application.
Movant has thus failed to establish that the proposed claim has an appearance of merit, that there is a valid excuse for the delay, or that movant is without an alterative remedy. The remaining factors of notice, opportunity, and prejudice, weigh in movant's favor. On this record, the Court finds that, on balance, the factors weigh against movant and that it would be futile to grant a late claim application where, as here, the proposed claim lacks the appearance of merit. Additionally, since there are no allegations of the proposed claim related to Rebecca Kerber, the Court finds that there is no basis for granting the late claim application as to Rebecca Kerber.
Accordingly, the motion for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6) is hereby DENIED.