Opinion
1113 CA 19–01100
01-31-2020
Charles PHILLIPS, Claimant–Appellant, v. STATE of New York, Defendant–Respondent.
DOLCE PANEPINTO, P.C., BUFFALO (SEAN E. COONEY OF COUNSEL), FOR CLAIMANT–APPELLANT. GOLDBERG SEGALLA LLP, BUFFALO (KENNETH L. BOSTICK, JR., OF COUNSEL), FOR DEFENDANT–RESPONDENT.
DOLCE PANEPINTO, P.C., BUFFALO (SEAN E. COONEY OF COUNSEL), FOR CLAIMANT–APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (KENNETH L. BOSTICK, JR., OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting claimant's application insofar as it seeks permission to file a late claim asserting a Labor Law § 240(1) cause of action upon condition that claimant shall file that proposed claim within 30 days of the date of entry of the order of this Court and as modified the order is affirmed without costs.
Memorandum: Claimant was allegedly injured on April 19, 2017, while working for a subcontractor on a demolition and abatement project at Attica Correctional Facility. Two days later, he filed an incident report with the former New York State Department of Correctional Services and, 92 days after the incident, he attempted to file a notice of intention to file a claim (notice of intent). Although the notice of intent was indisputably untimely (see Court of Claims Act § 10[3] ), defendant nevertheless proceeded to conduct an examination under oath (EUO) of claimant (see § 17–a). On January 2, 2018, following the EUO, claimant filed an application seeking permission to file a late claim against defendant (see § 10[6] ). The Court of Claims denied the application, leading to this appeal.
It is well settled that "[a] determination by the Court of Claims to grant or deny a motion for permission to file a late ... claim lies within the broad discretion of that court and should not be disturbed absent a clear abuse of that discretion" ( Malkan v. State of New York , 145 A.D.3d 1601, 1601–1602, 42 N.Y.S.3d 898 (4th Dept. 2016), lv denied 29 N.Y.3d 907, 57 N.Y.S.3d 712, 80 N.E.3d 405 [2017] [internal quotation marks omitted]; see Collins v. State of New York , 69 A.D.3d 46, 48, 887 N.Y.S.2d 400 (4th Dept. 2009) ; but see Matter of Smith v. State of New York , 63 A.D.3d 1524, 1524, 879 N.Y.S.2d 860 (4th Dept. 2009) ). Upon our consideration of the six factors outlined in Court of Claims Act § 10(6), we conclude that the court abused its discretion in denying claimant's application insofar as claimant sought to assert a cause of action under Labor Law § 240(1).
Several factors militate against granting claimant's application. For instance, his excuse for failing to file a timely notice of intent was law office failure, which, as the court determined, is not an acceptable excuse (see Casey v. State of New York , 161 A.D.3d 720, 721, 76 N.Y.S.3d 600 (2d Dept. 2018), lv denied 32 N.Y.3d 903, 84 N.Y.S.3d 857, 109 N.E.3d 1157 [2018] ; Langner v. State of New York , 65 A.D.3d 780, 783, 883 N.Y.S.2d 667 (3d Dept. 2009) ). Also, as the court noted, claimant has at least "a partial alternate remedy through workers' compensation" ( Matter of Garguiolo v. New York State Thruway Auth. , 145 A.D.2d 915, 916, 535 N.Y.S.2d 853 (4th Dept. 1988) ; see Matter of Lockwood v. State of New York , 267 A.D.2d 832, 833, 699 N.Y.S.2d 817 (3d Dept. 1999) ). With respect to three of the remaining four statutory factors, we agree with the court's determination that defendant had notice of the essential facts constituting the claim, had an opportunity to investigate the claim and was not prejudiced by the delay (see generally Smith , 63 A.D.3d at 1524, 879 N.Y.S.2d 860 ).
The most significant factor, however, is "whether the claim appears to be meritorious" ( Court of Claims Act § 10[6] ) inasmuch as "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" ( Prusack v. State of New York , 117 A.D.2d 729, 730, 498 N.Y.S.2d 455 (2d Dept. 1986) ; see Collins , 69 A.D.3d at 49, 887 N.Y.S.2d 400 ).
Contrary to claimant's contention, we agree with the court that claimant's proposed Labor Law § 200 cause of action lacks merit inasmuch as there is no dispute that claimant's accident did not arise from any condition of the property and the record establishes that defendant "exercise[d] no supervisory control over the operation" ( Lombardi v. Stout , 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992] ; see Mayer v. Conrad , 122 A.D.3d 1366, 1367, 997 N.Y.S.2d 869 (4th Dept. 2014) ). Furthermore, in his proposed claim, claimant sought to assert a section 241(6) cause of action, but he has failed to address that cause of action on appeal. We therefore deem abandoned any challenge to the court's determination that the cause of action lacked merit (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 (4th Dept. 1994) ).
We agree with claimant, however, that the court erred in concluding that the proposed cause of action under section 240(1) lacks any appearance of merit. In our view, there is evidence to support claimant's contention that his "injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( Runner v. New York Stock Exch., Inc. , 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ). Specifically, in support of his application, claimant submitted, inter alia, the transcript from his EUO, wherein he stated that, at the time he was injured, he was attempting to remove a large, heavy industrial window from a window sill that was several feet off of the ground. He was unable to use the manlift that he had used with other such windows because the platform of the manlift, at its lowest point, was higher than the bottom of the window he was removing. Other documentation submitted by claimant indicates that, as he struggled to remove the window and lower it to the ground, the window allegedly "fell" on him, causing him to sustain injuries to his back.
Claimant's submissions raise issues of fact whether he was injured by the application of the force of gravity to the window as he was moving it between "a physically significant elevation differential" ( id. ; see generally Zarnoch v. Luckina , 112 A.D.3d 1336, 1337, 977 N.Y.S.2d 521 (4th Dept. 2013) ) and whether he was provided adequate protection from the preventable, gravity-related accident. We conclude that claimant has "sufficiently ‘establish[ed] the appearance of merit of the claim’ " under Labor Law § 240(1) ( Smith , 63 A.D.3d at 1525, 879 N.Y.S.2d 860 ).
"Even if the excuse for failing to file a timely claim is ‘not compelling,’ " we conclude that the denial of the application with respect to the proposed section 240(1) cause of action was an abuse of discretion because defendant was able to investigate the claims and thus suffered no prejudice and, as noted, the proposed section 240(1) cause of action appears to have merit ( Jomarron v. State of New York , 23 A.D.3d 527, 528, 806 N.Y.S.2d 617 (2d Dept. 2005) ; see Smith , 63 A.D.3d at 1524–1525, 879 N.Y.S.2d 860 ). We therefore modify the order by granting the application insofar as it seeks permission to file a late claim asserting a Labor Law § 240(1) cause of action upon condition that claimant shall file that proposed claim within 20 days of the date of entry of the order of this Court (see Smith , 63 A.D.3d at 1524, 879 N.Y.S.2d 860 ).