Opinion
# 2015-044-504 Claim No. 124380 Motion No. M-85542 Motion No. M-85811 Motion No. M-85812
02-11-2015
MATTHEW SLEIGHT v. THE STATE OF NEW YORK
PULOS and ROSELL, LLP BY: William W. Pulos, Esq., of counsel RAWLE & HENDERSON, LLP BY: Richard B. Polner, Esq., of counsel
Synopsis
In response to Court's order to show cause, claimant demonstrated that defendant was properly served with the claim and that defendant failed to answer. However, defendant established a reasonable excuse for default, as well as a meritorious defense to the claim, and claimant was compelled to accept the previously served and filed (albeit late) answer.
Case information
| UID: | 2015-044-504 |
| Claimant(s): | MATTHEW SLEIGHT |
| Claimant short name: | SLEIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124380 |
| Motion number(s): | M-85542, M-85811, M-85812 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | PULOS and ROSELL, LLP BY: William W. Pulos, Esq., of counsel |
| Defendant's attorney: | RAWLE & HENDERSON, LLP BY: Richard B. Polner, Esq., of counsel |
| Third-party defendant's attorney: | |
| Signature date: | February 11, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
After receiving permission from this Court to late file (Sleight v State of New York, UID No. 2014-044-519 [Ct Cl, Schaewe, J., Apr. 11, 2014]), claimant filed this claim on May 19, 2014 to recover for injuries allegedly received when he fell while working on the State Route 36 bridge over Loder Street (the Route 36 Project) in the City of Hornell, Steuben County. Court records indicate that defendant State of New York (defendant) has not filed an answer. The Court, sua sponte, issued an Order to Show Cause dated August 13, 2014 directing claimant to submit a written statement relating to the service of this claim on the Office of the Attorney General, including copies of any documentary evidence establishing such service (Motion No. M-85542). The Court also invited defendant's counsel or the Attorney General's Office to submit a statement from someone with personal knowledge of the records of the Department of Law concerning the service of this claim, or the lack thereof.
On February 18, 2014 and during the pendency of Motion No. M-84387, defendant filed and served a consent to change attorneys from the Office of the Attorney General to Rawle & Henderson, LLP (Richard B. Polner, Esq.).
In response, claimant has submitted copies of the certified mail receipts and green return- receipt postcards establishing service of the claim upon the Attorney General's Office on May 19, 2014 and upon defendant's counsel on May 20, 2014. Because claimant has established that defendant was properly served with the claim, the Court's Order to Show Cause (Motion No. M-85542) is hereby withdrawn.
Defendant has responded to the Order to Show Cause as part of its motion to file and serve a late answer (see infra.). Defendant candidly admits that it was served with a copy of the claim, but failed to serve and file an answer within 40 days as required by the Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (a).
Claimant has also moved for a default judgment on the issue of liability (Motion No. M-85811). Defendant simultaneously moves for permission to file and serve a late answer and/or to compel claimant to accept the answer previously served upon him and rejected (Motion No. M-85812). Claimant opposes the motion. Because the relief sought by claimant in Motion No. M-85811 would be moot if defendant's Motion No. M-85812 is granted, the Court will first address defendant's motion.
The Court, in its discretion, may extend the time to answer or compel the acceptance of a late answer "upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR 3012 [d]). A defendant seeking such an extension of time must generally establish a reasonable excuse for the default as well as a meritorious defense to the action (Dinstber v Allstate Ins. Co., 75 AD3d 957 [3d Dept 2010]). "To that end, '[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the [C]ourt based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits' " (Rickert v Chestara, 56 AD3d 941, 942 [3d Dept 2008], quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2d Dept 2005]).
Counsel for defendant admits receiving a copy of the claim with a cover letter from claimant's counsel dated May 16, 2014, but states that the claim was inadvertently placed in the file without having been entered into counsel's calendar system. Counsel indicates that the Attorney General's Office forwarded a copy of the claim as well, but that copy also was not entered into the calendar system. Counsel notes that even though an answer was inadvertently not served, defendant did serve a "Notice of Hearing for Oral Examination and to Conduct a Physical Examination" and thereafter deposed claimant. Counsel states that within four days of receiving the Court's Order to Show Cause, defendant served an answer as well as additional discovery demands upon claimant. However, claimant rejected the answer as untimely.
Counsel notes the absence of any internal file number and/or the initials of an attorney who would have reviewed the claim.
Interestingly, this copy does bear an internal file number and the initials of an attorney.
Affirmation of Richard B. Polner, Esq., dated Oct. 15, 2014, in Support of Motion, Exhibit D.
Defendant has candidly admitted that it failed to timely file and serve an answer in this matter due to law office failure. There is no evidence that defendant's short 3½-month delay was willful or that claimant will suffer any prejudice as a result, particularly given claimant's participation at an examination before trial during that time. Accordingly, the Court finds that defendant has established a reasonable excuse for its default.
The Court further notes that claimant took no affirmative action to hold defendant in default until after the Court issued the Order to Show Cause.
The Court must now determine whether defendant has established the existence of a meritorious defense. In support of its motion, defendant has included a copy of the answer served on September 4, 2014 which contains several affirmative defenses, including that claimant did not make adequate and timely use of the safety devices which had been supplied, or in other words, that claimant was the sole proximate cause of the accident.
The Court notes that the copy of the answer included in defendant's motion papers is missing page 2. However, the Court has reviewed a complete copy of the answer which was filed with the Acting Clerk of the Court on September 5, 2014.
Labor Law § 240 (1) provides:
[a]ll contractors and owners . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
It is well-settled that Labor Law § 240 (1) was enacted to protect workers from gravity-related hazards by imposing absolute liability upon owners and their contractors who failed to provide or erect safety devices necessary to give the workers proper protection (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). In order to recover under Labor Law §240 (1), a claimant must establish a violation of the statute and that such violation was the proximate cause of his or her injuries (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]). However, liability will not attach if the defendant can establish that the claimant was the sole proximate cause of his or her injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). In order to set forth such a defense, the defendant must show that
[1] the safety devices that [claimant] alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [2 claimant] knew he was expected to use them [3] but for no good reason chose not to do so, [4] causing an accident. In such cases, [claimant's] own negligence is the sole proximate cause of his injury
(Gallagher v New York Post, 14 NY3d 83, 88 [2010]; see also Cahill, 4 NY3d at 39-40).
In the claim, claimant alleges that while he was working on a platform located approximately 30 feet above Loder Street, he lost his balance and fell to the ground, suffering severe personal injuries. Claimant asserts that there were no safety belts, harnesses, ropes, lanyards, railings, barricades, nets, scaffolds, catch platforms, tail lines or lifelines to protect him from his fall.
In support of its motion, defendant submits an affidavit of Joseph Brooks, the Project Engineer for Cold Spring Construction Co. (Cold Spring), claimant's employer at the time of the accident. Brooks states that as part of the Route 36 Project, the existing roadbed was to be demolished and replaced, and he was erecting wooden decking on the underside of the Route 36 overpass in order to collect broken concrete debris which fell during the demolition phase. Claimant and other Cold Spring employees would then remove the concrete debris from the decking and place it into a container which in turn would be removed. Brooks states that during the course of the project and prior to claimant's accident, Brooks observed Jamie Palmer, one of claimant's co-workers, using a harness and lanyard while she removed debris from the wooden deck. Brooks indicates that on the day of the incident he was also using a harness and lanyard. He further notes that harnesses and lanyards were available to any Cold Spring employee who requested them. Brooks notes that he inspected the wooden deck on the date of the incident and determined that there was 10 feet of space between claimant's work area and the edge of the wooden deck. Brooks also states that even though safety harnesses were available, he did not see claimant using one at any time during the project nor was he aware of claimant requesting any safety devices to perform his work.
Defendant also submits an affidavit of John Clancy, Safety Officer for Cold Spring at the time of claimant's incident. Clancy states that Cold Spring provides personal protective equipment for employees on active construction projects. Pursuant to the company's employee handbook, employees who are working in a hazardous area are required to wear a harness and lanyard. Clancy notes that claimant acknowledged receipt of a copy of the handbook and that he understood its contents. Clancy further indicates that Cold Spring was awarded a contract for renovation of existing bridge overpasses in several different areas, including the Michigan Hollow Bridge (at Interstate 390 in Avoca, NY) and the Route 36 Project where claimant was injured. Clancy avers that on April 22, 2013 (prior to the subject incident), he "personally trained, instructed and assisted [claimant] on the proper donning and use of harnesses and lanyards. In addition, to ensure that [claimant] was properly using the device, [Clancy] personally witnessed [claimant] working on [the Michigan Hollow Bridge], performing bridge demolition while wearing and properly using a harness and lanyard."
Affidavit of John Clancy, sworn to Oct. 8, 2014, in Support of Motion, ¶ 6.
The Cold Spring Employee Handbook provides, in pertinent part, that "[t]he employee is responsible for wearing appropriate personal protective equipment in operations where there is exposure to hazardous conditions, or where need is indicated to reduce hazards. The employer will supply all required safety equipment. Lifelines, safety belts and lanyards will be used only for employee safeguarding."
Id., Exhibit A at 17.
Defendant has set forth evidence that safety equipment such as harnesses and lanyards was present at the construction site and that claimant's co-worker Joseph Brooks was using said equipment on the day of claimant's accident. Further, defendant has established that claimant had been trained on the proper use of the safety equipment and had previously used said equipment on another Cold Spring construction site. Moreover, claimant knew that he was expected to use said equipment and there does not appear to be any good reason for him having failed to do so on the date in question. Accordingly, defendant has established at least the initial appearance of merit to its affirmative defense that claimant may have been the sole proximate cause of his accident.
Although there is contradictory evidence concerning the availability of safety equipment at the construction site and whether claimant refused to use it (evidence which was submitted in support of claimant's motion for a default judgment), at this early stage in the litigation and without the benefit of complete discovery, defendant has set forth sufficient evidence to support an inference that claimant may have been the sole proximate cause of his accident.
The Court finds that defendant has established a reasonable excuse for its default as well as a meritorious defense to the claim. Accordingly, defendant's Motion No. M-85812 is granted to the extent that claimant is compelled to accept the answer served on September 4, 2014 and filed on September 5, 2014. Claimant's Motion No. M-85811 is therefore denied as moot.
In conclusion, the Court's Order to Show Cause dated August 13, 2014 (Motion No. M-85542) is hereby withdrawn. Motion No. M-85812 is granted and claimant is compelled to accept the answer previously served and filed. Claimant's Motion No. M-85811 is denied.
February 11, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on Motion No. M-85542, Motion No. M-85811 and Motion No. M-85812:
1) Order to Show Cause (Motion No. M-85542) filed on August 26, 2014.
2) Reply Affidavit of William W. Pulos, Esq., sworn to on September 9, 2014, and attached exhibits.
3) Notice of Motion (Motion No. M-85811) filed October 21, 2014; Affidavit of William W. Pulos, Esq., sworn to on October 20, 2014, and attached exhibits; Affidavit of Matthew Sleight, sworn to on October 17, 2014; Memorandum of Law dated October 20, 2014.
4) Notice of Motion (Motion No. M-85812) filed on October 21, 2014; Affirmation of Richard B. Polner, Esq., dated October 15, 2014, and attached exhibits; Affidavit of Joseph Brooks sworn to on October 2, 2014; Affidavit of John Clancy, sworn to on October 8, 2014, and attached exhibits.
5) Claimant's Reply Memorandum dated November 3, 2014.
6) Affirmation in Opposition of Richard B. Polner, Esq., dated November 6, 2014, and attached exhibits.
Filed papers: Claim filed on May 19, 2014; Verified Answer filed on September 5, 2014.