Opinion
CA 02-02150
March 21, 2003.
Appeal from an order of the Court of Claims (NeMoyer, J.), entered October 24, 2001, which denied claimant's application for permission to file a late notice of claim.
CELLINO BARNES, P.C., BUFFALO (GERALD W. SCHAFFER, JR., OF COUNSEL), FOR CLAIMANT-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, BURNS, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the application is granted upon condition that claimant shall file the proposed notice of claim within 20 days of the date of entry of the order of this Court.
Memorandum:
Claimant was allegedly injured on January 6, 2000 when he fell from the roof of a newly constructed building owned by defendant. At the time of his fall, claimant was president of Loudon Building Company, Inc. (Loudon), the general contractor, and was on the roof inspecting "work performed by various subcontractors." Claimant advised an employee of defendant that he had fallen but stated that he did not think that he was injured. On March 5, 2001, claimant filed an application "for leave to file a late notice of claim." The Court of Claims denied claimant's application on the sole ground that the claim did not appear to be meritorious (see Court of Claims Act § 10; Savino v. State of New State, 199 A.D.2d 254, 254-255; Sawma v. State of New York, 136 A.D.2d 965, lv dismissed 72 N.Y.2d 907, lv denied 72 N.Y.2d 979). We reverse. The court erred in determining that claimant was not a protected person under Labor Law § 240 (1). In so determining, the court relied on Mordkofsky v. V.C.V. Dev. Corp. ( 76 N.Y.2d 573). That case is inapposite, however, because the plaintiff therein was a contract-vendee of a custom-built home and was injured while inspecting the progress of the work. Here, claimant also was inspecting the work, but he was "involved in a protected activity under the statute because his work was necessary and incidental to the construction of the [building]" (Nowak v. Kiefer, 256 A.D.2d 1129, 1130, lv dismissed in part and denied in part 93 N.Y.2d 887, rearg dismissed 93 N.Y.2d 1000; see also Aiello v. Rockmor Elec. Enters., 255 A.D.2d 470, 471-472, lv dismissed in part and denied in part 93 N.Y.2d 952) and he was president of "an entity hired by the owner for such purpose" (Aubrecht v. Acme Elec. Corp., 262 A.D.2d 994, 994; see Quinlan v. Eastern Refractories Co., 217 A.D.2d 819, 821; Kendall v. Venture Dev., 206 A.D.2d 797). Defendant's reliance on our decision in Scott v. Scott's Landing ( 277 A.D.2d 918, lv denied 96 N.Y.2d 705) is misplaced. There, the plaintiff was both the owner of the building where he was injured and the sole shareholder, officer and director of the defendant corporation located therein. We determined that defendant's motion for summary judgment dismissing the complaint alleging, inter alia, the violation of Labor Law § 240(1) was properly granted because the plaintiff, who was himself the owner of the building, "was not `working for another for hire'" in a construction-related task governed by section 240(1) (Scott, 277 A.D.2d at 918, citing, inter alia, Maddox v. City of New York, 108 A.D.2d 42, 46-47, affd 66 N.Y.2d 270). Here, claimant was so employed. We therefore reverse the order and grant the application for permission to file a late notice of claim upon condition that claimant shall file the proposed notice of claim within 20 days of the date of entry of the order of this Court.