Opinion
# 2017-032-016 Claim No. None Motion No. M-89661
04-03-2017
JUAN PONCE and JESSICA VELASQUEZ-PONCE v. THE STATE OF NEW YORK
Silberstein, Awad & Miklos, P.C. By: James Y. Kim, Esq. Newman Myers Kreines Gross Harris, P.C. By: Olivia M. Gross, Esq.
Synopsis
Motion for late claim relief pursuant to Court of Claims Act § 10 (6) is granted.
Case information
| UID: | 2017-032-016 |
| Claimant(s): | JUAN PONCE and JESSICA VELASQUEZ-PONCE |
| Claimant short name: | PONCE |
| 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-89661 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Silberstein, Awad & Miklos, P.C. By: James Y. Kim, Esq. |
| Defendant's attorney: | Newman Myers Kreines Gross Harris, P.C. By: Olivia M. Gross, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | April 3, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movants seek permission to file and serve a late claim to recover damages for personal injuries that movant Juan Ponce (hereinafter movant) sustained on December 16, 2013 while working in a construction yard owned by defendant in the Bronx, New York (see Court of Claims Act § 10 [6]). Notably, defendant posits no arguments in opposition to the motion for late claim relief.
It appears that, although a notice of intention to file a claim and a subsequent claim were both timely served upon the Attorney General, movant failed to file his claim with the Clerk of the Court within two years of the date of accrual (see Court of Claims Act § 10 [3]). --------
Specifically, movant's proposed claim alleges that, while working at a construction site owned, operated, and/or maintained by defendant, he was caused to slip and fall on ice due to defendant's failure to maintain the premises in a reasonably safe condition, and that he sustained serious injuries as a result thereof. Because the motion was brought within the three-year statute of limitations applicable to negligence claims under CPLR 214 (5), such relief is left to the discretion of the Court (see Court of Claims Act § 10 [6]; Tartaglione v State of New York, 51 Misc 3d 1220 [A], *1 [Ct Cl 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). In deciding whether to grant a late claim application, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 [6]). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, movant contends that his failure to timely file a claim is excusable because such failure was due to a mistake on the part of his attorneys. It is well settled, however, that law office failure is not an adequate excuse for failing to meet statutory filing deadlines (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]; Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept 2008]; Matter of Bonaventure v New York State Thruway Auth., 114 AD2d 674, 674-675 [1985], affd 67 NY2d 811 [1986]). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Here, it is undisputed that the State was timely served with a notice of intention to file a claim on March 14, 2014 (Exhibit A), as well as a subsequent claim in this matter on December 4, 2015 (Exhibit C). Accordingly, the Court finds that these three factors weigh in favor of granting the motion.
With respect to the factor of alternative remedies, movant concedes that he has an alternative remedy in the form of an action against the City of New York and the Dormitory Authority, and that such action is currently pending in Supreme Court. Further, although not addressed by the parties, "it is assumed that claimant is entitled to benefits available to him under the Workers' Compensation Law" (Lostracco v State of New York, 2002 NY Slip Op 50516 [U], *3 [Ct Cl 2002]). However, in light of the severity of the injuries sustained by movant, his inability to return to work, and the continued need for physical therapy, the Court finds that these alternative remedies may be just partial remedies. Accordingly, the Court finds that this factor weighs in neither party's favor (see Epstein v State of New York, 88 AD2d 967, 967 [2d Dept 1982]; Blaze v State of New York, UID No. 2010-032-011 [Ct Cl, Hard, J., Mar. 24, 2010]; Rosenhack v State of New York, 112 Misc 2d at 969).
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "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 [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Here, the Court finds that movant has met his minimal burden of establishing the appearance of merit with respect to his claim of common law negligence. "To establish a cause of action sounding in negligence, [movant] must establish the existence of a duty on defendant's part to [movant], breach of the duty and damages" (Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565, 576 [2011]; accord Korsinsky v Rose, 120 AD3d 1307, 1309 [2d Dept 2014]). In the proposed claim submitted with this motion, movant alleges that, while walking to obtain a bag of salt from a trailer on his work site, he "was caused to slip on ice and violently fall to the ground," due to defendant's "negligent, reckless and careless . . . ownership, operation, control and maintenance of said construction site" (Claim ¶¶ 2-3). Movant further alleges that he sustained serious injuries to his head, neck, back, left shoulder, and hip as a result of the accident (Claim ¶ 5). The Court finds that said allegations clearly set forth the requisite elements of a cause of action sounding in negligence and "provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015] [internal quotation marks and citations omitted]).
Movant also alleges causes of action based upon violations of sections 200, 240 (1), and 241 (6) of the Labor Law (Claim ¶ 2). In general, Labor Law § 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 347-348 [1998]; Marshall v Glenman Indus. & Commercial Contr. Corp., 117 AD3d 1124, 1127-1128 [3d Dept 2014]). "Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care 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" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 348 [internal quotation marks and citations omitted]). "'To establish a claim under Labor Law § 241 (6), [movant] must allege that . . . defendant[] violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct'" (Glenman Indus. & Commercial Contr. Corp., 117 AD3d at 1126, quoting St. Louis v Town of N. Elba, 70 AD3d 1250, 1250 [3d Dept 2010], affd 16 NY3d 411 [2011]). Because movant alleges specific violations of various regulations of the Commissioner of Labor and that such violations were the proximate cause of his injury, the Court finds that he has demonstrated a meritorious cause of action under Labor Law § 241 (6) (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 505 [1993]; compare Lostracco v State of New York, 2002 NY Slip Op 50516 [U], at *7).
The Court cannot find, however, that movant has set forth sufficient cause to believe that a valid cause of action exists under Labor Law § 240 (1), which "requires owners and contractors to provide adequate safety devices to protect workers against elevation-related hazards" (Jackson v Heitman Funds/191 Colonie LLC, 111 AD3d 1208, 1209 [3d Dept 2013]; see Saint v Syracuse Supply Co., 25 NY3d 117, 124 [2015]; Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7-8 [2011]). A plain reading of the claim in this matter reveals no allegations regarding any elevation-related hazards on the premises in question, as movant simply alleges that defendant was negligent in its maintenance of a walkway on the construction site. Accordingly, as movant has not established the initial appearance of merit with respect to his Labor Law § 240 (1) cause of action, the Court declines to grant late claim relief as to said cause of action (compare Sleight v State of New York, UID No. 2014-044-519 [Ct Cl, Schaewe, J., Apr. 11, 2014]).
Overall, movant's submissions satisfy the minimal burden of showing that his causes of action sounding in common law negligence and violations of Labor Law §§ 200 and 241 (6) are not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d at 834; see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]; Lostracco v State of New York, 2002 NY Slip Op 50516 [U], at *7). Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows movant to file and serve a late claim against defendant with respect to those claims.
The Court notes that the parties have requested a stay of the proceedings in this Court, pending resolution of the companion action in Supreme Court, and that a signed stipulation to that effect was submitted with defendant's reply papers on this motion. The Court will contact the parties to schedule a telephone conference regarding said request as soon as is practicable following the filing and service of the claim and joinder of issue.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-89661) is granted and movant is directed to file and serve a verified claim identical to the claim provided in support of this motion, except that the claim to be filed shall not assert a cause of action based upon Labor Law § 240 (1), in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
April 3, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Permission to File a Late Claim, dated December 9, 2016; Affirmation in Support of Motion to File a Late Claim, affirmed by James Y. Kim, Esq., on December 9, 2016, with Exhibits A through H annexed thereto. 2. Affirmation in Opposition to Claimant's Motion, affirmed by Michael J. Winter, Esq., on January 11, 2017, with Exhibit A annexed thereto.