Opinion
# 2012-037-009 Motion No. M-80336
02-09-2012
RICKARD v. STATE OF NEW YORK
Synopsis Case information
UID: 2012-037-009 Claimant(s): TYLER J. RICKARD Claimant short RICKARD name: Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote The caption has been amended, sua sponte, to reflect the (defendant name) : State of New York as the only properly named Defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80336 Cross-motion number(s): Judge: JEREMIAH J. MORIARTY III Claimant's Maxwell Murphy, LLC attorney: By: John F. Maxwell, Esq. Defendant's Phillips Lytle LLP attorney: By: Kevin J. English, Esq. Third-party defendant's attorney: Signature date: February 9, 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 Movant's motion for permission to late file a claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion and Attorney's Affirmation (mislabeled Affidavit) of John F. Maxwell, Esq. dated August 24, 2011 with annexed Exhibits A-G;
2. Letter from Kevin J. English, Esq. dated December 9, 2011 advising that Phillips Lytle LLP represents Defendant and will not oppose this motion.
The proposed claim (Movant's Exhibit A) alleges causes of action for negligence and violations of Labor Law §§ 200 and 241 (6) as a result of injuries allegedly sustained by Movant on December 13, 2010 when he slipped on water and ice injuring his back during the course of his employment at a construction site on the south campus of State University of New York at Buffalo.
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(5) applies, and the motion is therefore timely.
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." 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 the supporting affirmation, Movant's counsel avers that Movant did not learn of the statutory time within which to commence an action until he consulted with counsel in June, 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 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]). Movant alleges that Defendant had notice of the essential facts constituting the claim as well as an opportunity to investigate the circumstances underlying the claim because Movant filed an employee's injury report within days of the incident and that information was passed on to Defendant's insurance carrier. While there is no documented proof that the State of New York had notice of this incident or an opportunity to investigate, Defendant has not opposed this application and has not submitted any evidence of actual prejudice. Under these circumstances, no prejudice will befall Defendant 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 Movant's 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 Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant 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 Defendant, as owner, exercised some degree of supervision or control over the work which caused Movant's injuries (Kazmierczak v Town of Clarence, 286 AD2d 955 [2001]), or if there was a dangerous condition on the owner's property which caused the injuries that the owner had actual or constructive notice of the dangerous condition (Blackburn v Eastman Kodak Co., 256 AD2d 1123 [1998]). In the proposed claim and in his affidavit, Movant alleges that there was a dangerous condition at the work site caused by the accumulation of water and ice which existed for a considerable period of time prior to his accident and that Defendant had notice of the defective condition and an opportunity to correct it. Accordingly, the Court finds that Movant has established at least the appearance of a meritorious cause of action under Labor Law §200 and common-law negligence.
Movant also alleges a violation of Labor Law § 241 (6) which imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Comes v New York State Elec. & Gas Corp., supra at 878). In order to sustain a cause of action under this section, Movant must allege and ultimately prove that Defendant violated a rule or regulation of the Industrial Code which sets forth a specific standard of conduct, as opposed to a general reiteration of common-law principles (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Alleging a violation of the Industrial Code is a predicate to imposing liability upon Defendant (Rizzuto v L.A. Wenger Contr. Co., supra at 349). According to the proposed claim, Movant alleges that Defendant violated Industrial Code 12 NYCRR §23-1.7(d) which provides as follows:
Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.
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 (id.). Thus, Movant's 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 is 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]). This final factor weighs against Movant but 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 Court of Claims Act § 10 (6), it is the opinion of this Court that Movant be permitted to file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-80336 is hereby granted and Movant is permitted to file and serve his claim against the State of New York alleging causes of action based upon violations of Labor Law §§ 200 and 241 (6) and under the theory of common-law negligence.
Movant is directed to file his 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 9, 2012
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims