Opinion
134453
08-24-2020
Gary SWART and Renee Swart, Claimant(s) v. NEW YORK STATE THRUWAY AUTHORITY, Defendant(s)
Claimant's attorney: HOFMANN & SCHWEITZER, By: Paul T. Hofmann, Esq. Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Ellyn Wilder, Esq., Of Counsel
Claimant's attorney: HOFMANN & SCHWEITZER, By: Paul T. Hofmann, Esq.
Defendant's attorney: HON. LETITIA JAMES, Attorney General for the State of New York, By: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Ellyn Wilder, Esq., Of Counsel
Walter Rivera, J.
The following papers numbered 1-4 were read and considered by the Court on claimants' application for leave to serve and file a late claim against the New York State Thruway Authority (NYSTA) and the NYSTA's opposition to claimants' late claim application and cross-motion to dismiss the claim against the NYSTA :
Notice of Motion, Attorney's Supporting Affidavit and Exhibits, Memorandum of Law 1
Notice of Cross Motion, Attorney's Affirmation in Support of Cross Motion and in Opposition to Motion and Exhibits 2
Reply Memorandum and Exhibit 3
Partial Stipulation of Discontinuance as to the State of New York 4
By stipulation dated July 14, 2020, claimants discontinued their claim with prejudice as asserted against the State and the State withdrew its cross-motion for summary judgment to dismiss the claim as asserted against the State. Accordingly, the instant motion seeks leave to serve and file a late claim only against the NYSTA.
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Background
This claim arises out of a construction accident that occurred on August 6, 2019 on the Tappan Zee Bridge Construction Project when Gary Swart (hereinafter claimant) was allegedly injured during the course of his employment as a vessel maintenance engineer for Tappan Zee Constructors, LLC. The claim of Renee Swart, claimant's wife, is derivative.
The claim alleges that claimant "slipped and fell violently" from Excavator # 8 to the deck of the barge work platform due to the NYSTA's failure to provide claimant with a proper vertical access to the work platform and that the crane mat upon which the excavator was placed was saturated with oil (Claim, ¶ 13). The causes of action asserted are based upon negligence and violations of Labor Law §§ 200, 240 and 241(6). The claim, however, does not specify the Industrial Code section upon which the alleged Labor Law § 241 (6) violation is based. Claimant's wife alleges a loss of society and consortium.
A Notice of Intention to File a Claim against the State and the NYSTA was timely and properly served upon the State on October 15, 2019 (Claimants' Motion, Ex. 4). Additionally, on that same date, a Notice of Intention to File a Claim was served upon the attorney general's office with the intention of effectuating service upon the NYSTA; however, a Notice of Intention to File a Claim was not in fact served upon the NYSTA as required by Court of Claims Act § 11 (a) (ii).
A copy of the claim was served upon the State on January 30, 2020 (Claimants' Motion, Ex. 5) and upon the NYSTA on February 4, 2020 (Claimants' Motion, Ex. 1). The claim was filed with the Court on February 13, 2020 (Claimants' Motion, Ex. 7).
The NYSTA served a Verified Answer on February 24, 2020 raising the affirmative defense of lack of jurisdiction based upon untimely service and filing. Specifically, the affirmative defense asserted that a Notice of Intention to File a Claim had not been served upon the NYSTA and therefore the claim served upon the NYSTA on February 4, 2020, and filed with the Court on February 13, 2020, was not timely because service and filing were not effectuated within 90 days after the alleged date of accrual, August 6, 2019 (Claimants' Motion, Ex. 9; Verified Answer, ¶ 18).
NYSTA's Cross-Motion to Dismiss the Claim
The Court will address the NYSTA's cross-motion to dismiss the claim before addressing claimants' motion for late claim relief against the NYSTA.
The NYSTA cross-moves to dismiss the claim on the same ground that the NYSTA asserted in its affirmative defense based upon a lack of jurisdiction. Notably, claimants concede that the Notice of Intention to File a Claim was not properly served upon the NYSTA within 90 days after claimant's accident (Claimant's Supporting Affidavit, ¶¶ 6-9). However, claimants argue that the Court should deem the claim against the NYSTA as filed nunc pro tunc.
The Court of Claims does not have authority to grant nunc pro tunc relief; therefore claimants' request for such relief is DENIED.
The NYSTA is a separate and distinct entity from the State ( Public Authorities Law § 361-b ; see Bonaventure v. New York State Thruway Auth. , 108 AD2d 1002, 1003 [3d Dept 1985] ). Thus, service upon the attorney general does not confer jurisdiction upon the NYSTA ( Bonaventure , 108 AD2d at 1003 ). Rather, the NYSTA must be served "in addition to the attorney general" ( Court of Claims Act § 11 [a] [ii] ). In the case at bar, the Notice of Intention to File a Claim was served only upon the attorney general and was not served upon NYSTA. Accordingly, the Notice of Intention to File a Claim did not extend claimants' time to serve and file a claim against the NYSTA (see Sommer v. State of New York , 131 AD3d 757 [3d Dept 2015] ; Langner v. State of New York , 65 AD3d 780 [3d Dept 2009] ). Thus, the claim is jurisdictionally defective because it was not served and filed within 90 days after its accrual ( Court of Claims Act § 10 [3] ; Dreger v. New York State Thruway Auth. , 81 NY2d 721, 724 [1992] [both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act]). A failure to comply with any of the service provisions of the Court of Claims Act is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v. State of New York , 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v. State of New York , 286 AD2d 496, 497-498 [2d Dept 2001] ).
Accordingly, the NYSTA's cross-motion to dismiss the claim is hereby GRANTED.
Claimants' Late Claim Application
Claimants seek leave to serve and file a late claim against the NYSTA in the same form as the allegations of the filed claim, absent all references to the State (Supporting Affidavit of Claimants' Counsel, ¶¶ 22, 23; Claimants' Motion, Ex. 1; Reply Memorandum).
The determination of a motion for leave to 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 defendant had notice of the essential facts constituting the claim; (3) whether the defendant 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 to File a Claim resulted in substantial prejudice to the defendant; and (6) whether the movants/claimants have 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] ).
The Court has carefully considered all of the factors.
With regard to the first factor, the purported excuse for the delay is essentially ignorance of the law regarding the requirements that a Notice of Intention To File a Claim must be properly served upon the NYSTA, as a separate and distinct entity from the State. The case law is clear that ignorance of the law is not a reasonable excuse for the delay in a late claim application (see Borawski v. State of New York , 128 AD3d 628, 629 [2d Dept 2015] ["ignorance of the law was not excusable"]; Erca v. State of New York , 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977] [an error in filing the claim against the wrong party was not an excusable for the delay]). Thus, the Court finds that claimants have not provided a reasonable excuse for the delay (see Langner , 65 AD3d at 783 [excuse for not meeting the statutory deadlines for filing was inadequate and an admission of law office failure]). The reasonableness of the delay, however, is but one factor to be considered and it is not a determinative factor.
While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v. State of New York , 158 AD3d 961 [3d Dept 2018] ; Ortiz v. State of New York , 78 AD3d 1314 [3d Dept 2010] ; Savino v. State of New York , 199 AD2d 254 [2d Dept 1993] ). 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] ; Matter of Santana v. New York State Thruway Auth. , 92 Misc 2d 1 [Ct Cl 1977] ).
There are no arguments set forth by claimants' counsel nor any exhibits submitted to support a finding of an appearance of merit of the causes of action based upon negligence or a violation of Labor Law § 200 by the NYSTA. Accordingly, the late claim application is DENIED as to the causes of action based upon negligence and a violation of Labor Law § 200.
Claimant also seeks to bring a late claim alleging that the NYSTA violated Labor Law §§ 240 (1) and 241 (6). However, the proposed claim fails to allege any specific section of the Industrial Code as a predicate for the Labor Law § 241 (6) claim. In his late claim application, claimant seeks to invoke 12 NYCRR § 23:1.7 (d), which requires the removal of "water, grease and any other foreign substance which may cause slippery footing" from "any floor ... walkway, ... platform or other elevated working surface" (Supporting Affidavit of Claimants' Counsel, ¶¶ 31, 33, 34).
In support of the argument of an appearance of merit of the Labor Law causes of action based upon §§ 240 (1) and 241(6), claimants' counsel also points to the facts alleged in the improperly served Notice of Intention To File a Claim, sworn to by claimant on October 1, 2019, the untimely served and filed claim, sworn to by claimant on January 23, 2020, and claimant's affidavit submitted in support of his late claim application, sworn to by claimant on April 14, 2020 (Claimants' Motion, Exs. 4, 1, 14). Additionally, in reply, claimant submits his affidavit sworn to on July 13, 2020 (Claimants' Reply, Ex. 18).
In opposition, NYSTA argues, inter alia, that there has been no showing of an appearance of merit of the causes of action asserted in the proposed claim. In reply to the NYSTA's opposition, claimants' counsel argues that defense counsel impermissibly made statements of fact not within his personal knowledge and that therefore "the entire brief should be stricken on that basis alone" (Reply Memorandum, Point II). The Court finds that claimants' counsel has not made a sufficient showing to warrant striking defense counsel's brief and the Court did not consider or rely upon any personal observations of defense counsel.
Defense counsel's arguments addressed to the appearance of merit factor were compelling in their focus on the disparities and inconsistencies in the documents sworn to by claimant and submitted in support of the late claim application.
In that regard, upon the Court's review of the exhibits advanced by claimants' counsel and those submitted by defense counsel, the Court notes that there are numerous discrepancies, disparities and inconsistencies both within the documents sworn to by claimant, when considered independently, and as among the documents, when considered in comparison to each other or in comparison to other exhibits before the Court. The Court details its considerations and observations below in assessing whether there has been a sufficient showing of an appearance of merit of the allegations.
The Notice of Intention to File a Claim, which necessarily precedes the claim, is significantly more detailed than the claim. Notably, the Notice of Intention To File a Claim initially asserts that claimant fell as he was climbing down "the steps attached to Excavator # 8" due, in part, to the location of the excavator's "ladder" in relation to the crane mat (Claimants' Motion, Ex. 4 [emphasis added]). Thereafter, it is asserted that claimant fell:
"[a]s he descended from the excavator's track, down the welded steps on the excavator and put his foot down onto the crane mat, his foot went onto the edge of the crane mat containment, which was mis-located. The mat should have been extended forward in relation to the steps from the excavator so claimant's feet would have landed on a solid surface when stepping down ... As [claimant] stepped down to the mat and its steel containment, his left foot slipped" due to the slippery condition created by a hydraulic line that failed on the excavator "a day or so" prior to claimant's fall and resulted in hydraulic oil spilling on the mat (id. ). The oil spill was not properly "cleaned up or otherwise ameliorated" prior to claimant's accident and the oil "percolated up during ongoing rainfall that was occurring at the time of the incident [emphasis added]"
(id. ). The Notice of Intention to File a Claim also asserts that the crane mat should have been "extended co-equal in distance towards the barge edge as it was for the rest of the excavator mats" (id. ).
By contrast, the claim, which was prepared subsequently to the Notice of Intention to File a Claim, does not set forth any description as to how claimant fell or whether he fell from a ladder or steps used to descend the excavator (Claimants' Motion, Ex. 1, ¶ 13). The claim merely asserts that claimant "slipped and fell violently to the deck of the barge work platform upon which was situated Excavator # 8 ... due to the insufficient design and fabrication of structures, equipment and devices used for descending from a construction machine to the deck of the barge work platform" (id. ). The claim fails to allege any specific deficiency in the apparatus used by claimant to descend the excavator. Rather, the claim states in conclusory terms there was "insufficient vertical access" provided to descend the excavator (id. ). Additionally, the claim alleges that the "crane mat was saturated with oil in the area which was a step for descending to the deck" (id. ); however, the claim makes no mention of rain nor does the claim allege that rainfall wetness was a contributing factor to the alleged slippery condition of the crane mat, as was asserted in the Notice of Intention to File a Claim. Also, the claim does not allege that the crane mat should have been extended.
Claimant's affidavit submitted in support of the late claim application and sworn to by claimant on April 14, 2020, describes claimant's slip and fall from the excavator in yet a different manner. It states:
"I had worked repairing the excavator ... and when I finished ... I exited the cab of the machine by climbing out and onto the machine's track frame, which was slippery and uneven. I walked forward to a short vertical ladder that hung below the track, turned around and started descending it. At the bottom of the vertical ladder, I had to step off from it down about 1-1/2 feet with one foot to the slippery edge of a crane mat made of 12? x 12? wooden beams. With the other foot, because the wooden crane mat was not extended all the way under the bottom of the ladder, I would have to reach down about 2-1/2 feet to the steel deck below, all the while holding onto whatever I could grab, as there were no proper hand-holds provided. The mat that day was wet with rain and it was soaked with hydraulic fluid which seeped onto the rounded steel edge of the mat. When I stepped from the bottom rung of the ladder to the mat, my foot slipped on the edge of the mat causing me to fall to the deck. This means of egress was dangerous, and represented an elevation related hazard because I could not safely step from the ladder with both feet to the same level below the ladder's rungs. Also, the wooden mat was dangerously slippery from hydraulic fluid that had soaked into the wood from a spill on a prior day. Lastly, there were no handholds for me to hold onto as I descended, so I could not keep myself from falling"
(Claimants' Motion, Ex. 14, ¶ 4). Claimant's affidavit states that he annexed a photograph that he took shortly after the incident depicting the scene of his fall (Claimants' Motion, Ex. 14, ¶ 5; Ex. 2 to Claimant's Affidavit). Claimant's affidavit sworn to by claimant on July 13, 2020 and annexed to Claimants' Reply Memorandum reaffirms that the photograph attached as exhibit 2 to claimant's affidavit sworn to on April 14, 2020 fairly and accurately depicts the "excavator's track and the ladder" which claimant was descending and the edge of the mat onto which claimant was trying to step when he fell (Claimants' Reply, Ex. 18). Claimant's affidavit further asserts that the "body of the machine" is rotated 180 degrees from where it was at the time of the accident (id. ).
A review of the photograph relied upon by claimant to support his April 14, 2020 affidavit, however, obfuscates rather than supports claimant's description of the accident contained in the affidavit (Claimants' Motion, Ex. 2 attached to Ex.14). Specifically, claimant's affidavit states that when he finished repairing the excavator he "exited the cab of the machine" and stepped onto the track frame and walked forward to a short vertical ladder (Claimants' Motion, Ex. 14). The photograph, however, does not depict the cab door and therefore is not a clear depiction of the accident location as described by claimant. Additionally, a comparison of claimant's photograph of the excavator to the photographs of the excavator submitted by defense counsel in opposition to the motion further undermines claimant's showing of an appearance of merit and fails to clarify the accident location (Cross-Motion, Exs. E, F). In that regard, the photographs submitted by the NYSTA show a fuller depiction of an excavator tagged as Excavator # 8, with the cab door on one side of the machine and the black closed panel depicted in claimant's photograph, without a cab door, on the opposite side of the machine (id. ). Thus, the photograph submitted by claimant appears to be on the opposite side of the excavator from the location that claimant described as the side of the excavator from which he fell after exiting the cab. As such, the photograph relied upon by claimant is inconsistent with both of claimant's affidavits with respect to the accident location.
Claimant's affidavit sworn to on April 14, 2020 also indicates that he annexed another photograph taken "from a different barge used at that site" (Claimants' Motion, Ex 14, ¶ 7; Ex. 3 to Claimant's Affidavit). Claimant affirms that this photograph depicts a "different barge" with a "safe wooden staircase built so workers simply could climb the stairs to the track and more easily get into the cab of the machine" (id. ). According to claimant, this photograph of a "different barge" is submitted to show "an awareness of the hazards related to climbing up onto and descending from the excavators on site, and shows a safe and convenient means to get to machines that eliminate the hazard [claimant] encountered, and provided a safe way to come from the cab of the machine to get to the deck of the barge" (id. ). It is noted that while claimant's affidavit refers to the picture of a different barge, it is a photograph of an excavator with a tag on it identifying it as Excavator # 8. Thus, this photograph also obfuscates rather than clarifies claimant's arguments and seems to indicate, contrary to claimant's sworn assertions, that Excavator # 8 did have an ancillary access to the work platform on the deck of the barge.
In addition to the aforenoted discrepancies and inconsistencies in the documents sworn to by claimant and advanced by claimants' counsel in support of the late claim application, the Court notes that claimant's handwritten account of the incident dated August 6, 2019, which is attached to claimant's Employee Statement, provides yet another version of what occurred on August 6, 2019 (NYSTA's Opposition, Ex. D). Claimant's handwritten statement provides:
"I Gary Swart climbed onto Exc 8 to talk to operator. When I was getting off the machine I put my left foot down on the wooden mat and lost my balance. I then fell onto the edge of wooden mat and the barge ... At the time of my fall it was raining ... Mike O'Shea and Bill Barlow witnessed the fall"
(id. ). This statement makes no mention of any apparatus used by claimant to descend the excavator nor any deficiencies in such apparatus. The statement also does not refer to hydraulic oil or a saturated crane mat. Additionally, it is noted that while claimant's handwritten statement and the Notice of Intention To File a Claim included the names of two witnesses to claimant's fall, claimant did not submit a sworn statement from either witness in support of his late claim application.
Claimant's conclusory allegations that his accident was due to the NYSTA's failure to provide a proper vertical access from Excavator # 8 to the barge deck work platform below are insufficient to establish an appearance of merit of his causes of action based upon Labor Law §§ 240 (1) and 241 (6) without the aid of an expert describing the industry standards and the departure from those standards (see Klingler v. State of New York , 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of the proposed claim]; see Witko v. State of New York , 212 AD2d 889, 891 [3d Dept 1995] ["(a) general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movants' unsubstantiated allegations do not show an appearance of merit]). Thus, the Court finds that claimant has not met his burden of establishing an appearance of merit of the causes of action based upon violations of Labor Law §§ 240 (1) and 241 (6) (see Matter of Sandlin v. State of New York , 294 AD2d 723 [3d Dept 2002] ).
The Court's determination that claimant did not establish an appearance of merit of the causes of action based upon Labor Law §§ 240 (1) and 241 (6) outweighs the arguments advanced by claimant that the NYSTA had notice and an opportunity to investigate the facts underlying the claim and that therefore the NYSTA did not suffer substantial prejudice from the delay (see Langner , 65 AD3d 780 [late claim application denied even though the State admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]).
With regard to the loss of society and consortium claim asserted by claimant's wife, claimants' counsel argues at page 13 of the Reply Memorandum that, based upon claimant's medical records, "[t]he Court can easily see that" due to the injuries that claimant sustained in the accident, claimant "is no longer a breadwinner and able to physically work around the house" and that therefore claimant's wife "has many more physical and economic responsibilities;" thus claimant's wife "is stating a valid loss of society and consortium claim." The argument advanced by claimants' counsel is purportedly supported by the medical records of claimant, without any supporting documentary evidence pertaining to claimant's wife. Notably, claimant's wife did not submit an affidavit detailing and supporting her loss of society and consortium claim resulting from the injuries allegedly sustained by claimant in the accident. The Court finds that claimant's wife has failed to demonstrate an appearance of merit of her loss of society and consortium claim and, contrary to the arguments advanced by claimants' counsel, the Court cannot speculate based on the medical records of claimant, as to an appearance of merit of the loss of society and consortium claim asserted on behalf of claimant's wife. In any event, the loss of society and consortium claim fails because it is dependent upon the viability of the causes of action asserted by claimant in the proposed claim.
Finally, contrary to the arguments advanced by claimants' counsel, Workers' Compensation benefits have been found to constitute another available remedy to a late claim applicant and claimant has in fact received Workers' Compensation benefits (NYSTA's Ex. J; see Olsen v. State of New York , 45 AD3d 824 [2d Dept 2007] ). Accordingly, the Court finds that Workers' Compensation benefits are another available remedy to claimant.
Absent a reasonable excuse for the delay and a proposed claim of questionable merit, the Court finds that claimants' late claim application warrants denial (see Matter of Brown v. State of New York , 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Accordingly, claimants' late claim application is DENIED.