Opinion
# 2012-049-067 Motion No. M-82083
12-21-2012
PETER YARUSSO v. THE STATE OF NEW YORK
Synopsis
Claimant's late claim application alleging negligence and violations of common law negligence, Labor Law §§ 200 and 241 (6), granted in part. Case information
UID: 2012-049-067 Claimant(s): PETER YARUSSO Claimant short name: YARUSSO 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-82083 Cross-motion number(s): Judge: David A. Weinstein Davidson & Cohen, P.C Claimant's attorney: By: Bruce E. Cohen, Esq Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Edward J. Curtis, Assistant Attorney General Third-party defendant's attorney: Signature date: December 21, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Peter Yarusso moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed verified claim alleges causes of action for common law negligence and violations of Labor Law §§ 200 and 241 (6), based upon injuries Yarusso sustained on May 17, 2012 when he "slipped/tripped and fell on construction debris on the ground after descending shanty/trailer steps" on a construction site during the course of his employment with CCA Civil Halmar for a George Washington Bridge renovation/construction project (the "Project") (Proposed Claim ¶ 3).
In addition to the proposed claim, Yarusso submits his own affidavit, an affirmation of counsel, photographs of the area where the accident occurred, a copy of a notice of claim titled Yarusso v The Port Authority of New York and New Jersey, and a letter from the general counsel's office for the Port Authority stating that it does not own, operate or maintain the location of the incident.
The application to file a late claim was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10 (6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant states that he initially believed that the yard where the accident occurred was owned by the Port Authority. As a result, on August 2, 2012, a notice of claim was served on that entity. Shortly thereafter, claimant received correspondence from the Port Authority, dated August 14, 2012, that disavowed ownership and operation of that yard. Claimant then learned on August 20, 2012 that his employer had been hired by the New York State Department of Transportation for the Project, and that New York State owned the yard. Claimant's confusion as to which entity to sue, however, is generally not a valid excuse for purposes of section 10 (6) relief (see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]). As a result, this factor weighs marginally against claimant's application.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant argues that given the brief period of time since the expiration of the 90-day filing and serving deadline and the making of this motion, defendant would not be prejudiced. Claimant adds that the accident occurred on a State-owned project, and was reported by the contractor to State personnel (see Matter of Smith v State of New York, 63 AD3d 1524, 1525 [4th Dept 2009] [these factors weigh in claimant's favor when "claimant's employer prepared an accident report and took photographs of the . . . accident site"]). Defendant makes no argument with regard to these three factors, and given claimant's brief delay of less than one month after the statutory 90-day period ran, I find that these factors weigh in claimant's favor.
The appearance of merit of a proposed claim is evaluated under the standard set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl 2006]).
Yarusso's affidavit states that his injury occurred within a construction yard his company used to store its vehicles and equipment. At about 9:40 p.m. on May 17, 2012, as he was descending from a shanty/trailer that his company had in the yard, he "slipped and tripped and fell on construction debris consisting of nuts, bolts, pieces of metal, wooden pieces and construction scrap" that were accumulated on the ground at the foot of the trailer steps (Yarusso Aff. at 1-2). According to Yarusso, the location was poorly lighted and his effort to navigate his way through the area was to no avail due to the amount of debris (id. at 2).
Claimant contends that these allegations set forth meritorious claims under Labor Law §§ 200 and 241 (6), as well as for common law negligence. I address these causes of action in turn below.
I. Labor Law § 200 and Common Law Negligence
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; see also Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] [claim pursuant to this provision is "tantamount to a common-law negligence claim in a workplace context"]). Under the statute, liability attaches to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (see Lombardi v Stout, 80 NY2d 290, 294-295 [1992]). As alleged here, when an accident arises from a dangerous premises condition, claimant must demonstrate that defendant had actual or constructive knowledge of the unsafe condition that caused the accident (see Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]). Similarly, a landowner will not be liable in common law negligence for a hazard on its property unless it created the unsafe condition (see Di Sanza v City of New York, 11 NY3d 766, 767 [2008]), or had actual or constructive notice thereof (id.; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).
Claimant's submissions make no showing in regard to these elements. They contain no allegation at all as to the State's role in the project or knowledge of the alleged dangerous condition, nor do they provide any indication as to how long the alleged hazard existed, from which constructive notice might be inferred (cf. Rickard v State of New York, UID No. 2012-037-009 [Ct Cl, Moriarty, J., Feb. 9, 2012] [section 200 and common law negligence claim had appearance of merit when claimant "alleges that there was a dangerous condition at the work site . . . 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"]). Indeed, claimant's own affidavit indicates that he was unaware that the State played any role in the project at all until after he was injured (see Yarusso Aff. at 2 ["I understand and have now learned that the renovation project was under the authority of the New York State Department of Transportation"] [emphasis added]). In the absence of anything in claimant's submission that connects the State to the condition he alleges to have caused his injury, I find that claimant's section 200 and negligence claims lack an appearance of merit (see Matter of Allen v State of New York, 2002 WL 31940720 [Ct Cl 2002], affd 4 AD3d 835 [4th Dept 2004] [no appearance of merit on section 200 claim when claimants had not "made any showing whatsoever that the State had actual or constructive notice of an unsafe condition, or that it exercised any degree of supervision or control over the work site"]; accord Gonzalez v State of New York, UID No. 2012-037-007 [Ct Cl, Moriarty, J., Feb. 6, 2012]).
Labor Law § 241 (6) imposes a nondelegable duty 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. To make out a claim under section 241 (6), a claimant must show that a defendant violated a rule or regulation promulgated by the Commissioner of the Department of Labor in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-02 [1993]), where such rule constitutes a "specific, positive command" or a "concrete specification" (Toefer v Long Is. R.R., 4 NY3d 399, 409 [2005] [citations omitted]).
The proposed claim identifies the following Industrial Code provisions as having been violated in the present case: 12 NYCRR 23-1.3, 23-1.4, 23-1.5, 23-1.7, 23-1.15, 23-1.16, 23-1.17, 23-1.18.
Sections 23-1.3, 23-1.4 and 23-1.5 are general provisions, and therefor do not provide a basis for liability under Labor Law § 241 (6) (see Weinberg v Alpine Improvements, LLC, 48 AD3d 915, 918 [3d Dept 2008] [sections 23-1.3, 23-1.5 not sufficiently specific to support § 241 (6) claim]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502 [section 23-1.4 (a) not sufficiently specific]; Dombrowski v Schwartz, 217 AD2d 914, 915 [4th Dept 1995] [section 23-1.4 (b) not sufficiently specific]).
Sections 23-1.15, 23-1.16, 23-1.17, and 23-1.18, which concern standards for safety railings, safety belts and life nets, and sidewalk sheds and barricades, respectively, have been held sufficiently specific to sustain a Labor Law § 241 (6) cause of action (see Macedo v J.D. Posillico, Inc., 68 AD3d 508, 510 [1st Dept 2009] [sections 23-1.15 and 23-1.16]; Cocoli v Champion Constr. Corp., 25 Misc 3d 1244[A] [Sup Ct, Kings County 2009] [section 23-1.17]; Quick v City of New York, 24 Misc 3d 1210[A] [Sup Ct, Kings County 2009] [section 23-1.18]). However, claimant has not shown that his claim has the appearance of merit as to these provisions, as he does not allege that he had been provided with any of these devices (see Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 337-338 [1st Dept 2006]).
Section 23-1.7 concerns protection from hazards, and has been found to possess the requisite specificity to sustain a claim under section 241 (6) (see Tomyuk v Junefield Assoc., 57 AD3d 518, 521 [2d Dept 2008] [section 23-1.7 contains specific directives]; Corbi v Avenue Woodward Corp., 260 AD2d 255 [1st Dept 1999] [section 23-1.7 (e), which concerns "tripping and other hazards," is a specific directive]). As relevant to this motion, section 23-1.7 (e) (2)requires owners and contractors to maintain working areas free from tripping hazards such as debris and any other obstructions. For example, in Harkin v City of New York (69 AD3d 901 [2d Dept 2010]), the appellate court found an issue of fact as to whether plaintiff was injured in a "working area" as defined by 12 NYCRR 23-1.7 (e) (2), when a worker fell on a pathway by the door to the shanty was covered with empty cement bags, wooden pallets, empty bottles, and other debris (see also Kutza v Bovis Lend Lease LMB, Inc., 95 AD3d 590, 591-592 [1st Dept 2012] [triable issue as to section 241 (6) claim premised on section 23-1.7 (e) (2), where evidence indicated that the debris on the floor of the job site consisted of materials used by other tradesman who had allegedly departed the area]).
12 NYCRR 23-1.7 (e) (2) provides:
"(e) Tripping and other hazards . . .
"(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed."
As noted above, claimant's affidavit asserts that the area of the work site where he fell was covered with "nuts, bolts, pieces of metal, wooden pieces and construction scrap." These allegations are sufficient to set forth a violation of section 23-1.7 (e) (2).
Defendant contends, however, that this cause of action lacks merit because the claimant was not injured while engaged in construction activity. In support of this argument, the State relies on the affirmation of an assistant attorney general, as well as a copy of an unsigned and unsworn Employer's Workers' Compensation Report of Work-Related Injury/Illness ("Report"), appended to its papers as exhibit A. The Report indicates that claimant's shift started at 10:00 p.m. (Def. Ex. A), while the proposed claim alleges that the accident occurred at 9:40 p.m. Based on this timing, defendant argues that Labor Law § 241 (6) does not apply since claimant was not engaged in construction or demolition, since he was not even on duty at the time of the accident.
Defendant makes the same argument in regard to the section 200 claim. I need not address that contention, as I have found that claim lacks apparent merit for the reasons stated above.
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The Court of Appeals in Nagel v D & R Realty Corp. (99 NY2d 98, 102 [2002]) found that section 241 (6) protects workers from industrial accidents specifically in connection with construction, demolition or excavation work, and thus "do[es] not apply to claims arising out of maintenance of a building or structure outside of the construction context" (Nagel, 99 NY2d at 99). Nonetheless, an owner's responsibility under Labor Law § 241 (6) "extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work" (Smith v McClier Corp., 22 AD3d 369, 370-371 [1st Dept 2005], quoting Sergio v Benjolo N.V., 168 AD2d 235, 236 [1st Dept 1990]). Thus, a number of cases have held that liability can be found under section 241 (6) for injuries on the work site, even when the worker was not engaged in construction work at the time of the injury (see Torres v Forest City Ratner Cos., LLC, 89 AD3d 928 [2d Dept 2011] [reversing grant of defendant's summary judgment; section 241 (6) extends to plaintiff who fell on material left on the ground, after his work was done for the day]; Gherardi v City of New York, 49 AD3d 280, 280 [1st Dept 2008] [protection of section 241 (6) extends to accident that occurred on an entrance ramp, although that location not where plaintiff's work was actually being conducted]; Brown v Brause Plaza, LLC, 19 AD3d 626 [2d Dept 2005] [plaintiff slipped and fell on stairway in building while on his lunch break; summary judgment dismissing Labor Law § 241 (6) claim denied]; Lombardi v 79 Crosby St. LLC, 35 Misc 3d 1220(A), *6 [Sup Crt, New York County 2012] [no requirement that employee must be working on an assigned duty or actual construction work at the time of the injury to be entitled to the protection of section 241 (6) [collecting cases]). The caselaw is not uniform in this regard (see e.g. Tinyes v State of New York, UID No. 2005-027-506 [Ct Cl, Waldon, J., Sept. 1, 2005], affd 82 AD3d 1109 [2d Dept 2011] [late claim denied; claimant was injured at construction site when a coffee truck operated by a private individual backed up over claimant]), and the precise limitations on section 241 (6) when a worker's injury occurs while he or she is not actively engaged in construction work are not fully defined by the caselaw. Whatever such limitations exist, however, their application to this case cannot assessed based on defendant's current submission, and without development of a more complete factual record.
Defendant also argues that the Report states that claimant slipped and fell on the trailer steps, and "not after descending the steps" as the proposed claim alleges. Even if such a distinction makes a difference for purposes of the section 241 (6) cause of action, defendant's opposition does not contradict claimant's allegations by the testimony of someone with personal knowledge of what occurred (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986] [granting leave to file late claim, where only attorney affirmation was submitted by the State in opposition, and "no affidavit [was] submitted from anyone with personal knowledge"]). Moreover, as a general rule, the "[f]acts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [1976], affd 63 AD2d 334 [1978], affd 47 NY2d 476 [1979]). To the extent defendant raises "issues of fact as to the merits of the claim," that does not vitiate the appearance of merit under section 10 (6) (Jomarron v State of New York, 23 AD3d 527, 527 [2d Dept 2005]; see also Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991] [finding that "although a sharp but undeveloped factual issue exists . . . there appears to be merit to the claim within the meaning of Court of Claims Act § 10 (6)"]).
Finally, although defendant argues that claimant has failed to substantiate his injuries through medical records, such evidence is not required for a late claim application of this nature (see Ledan v State of New York, UID No. 2009-030-554 [Ct Cl, Scuccimarra, J., Sept. 17, 2009] ["no hard and fast requirement of a particular kind of proof is mandated" on a late claim motion]).
In light of the foregoing, claimant has set forth the appearance of merit in regard to his section 241 (6) cause of action.
As to the availability of an alternate remedy, it appears that claimant may have at least a partial remedy under the Workers' Compensation Law. While this factor weighs against granting claimant's application, it is not determinative (see e.g. Matter of Lockwood v State of New York, 267 AD2d 832, 833 [3d Dept 1999]). Defendant's contention that claimant may have an action against the owner of the trailer is speculation, and does not militate against granting the application.
Having reviewed the submissions and considered all of the factors enumerated in Court of Claims Act § 10 (6), I conclude that they weigh in favor of claimant's application as to the section 241 (6) cause of action (as limited above), but not as to the negligence and Labor Law § 200 causes of action.
Accordingly, having reviewed the submissions and having considered all of the factors, IT IS ORDERED that motion no. M-82083 be GRANTED IN PART, and that within thirty days of the filing of the Decision and Order claimant shall serve and file a properly verified claim in the form of the proposed claim appended to his moving papers, entitling it Claim, and omitting references to negligence, Labor Law § 200, and Industrial Code provisions 12 NYCRR 23-1.3, 23-1.4, 23-1.5, 23-1.15, 23-1.16, 23-1.17, and 23-1.18. In serving and filing the claim, claimant shall comply with all of the requirements of Court of the Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
December 21, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, Affidavit in support, Affirmation in support, and annexed Exhibits.
2. Defendant's Affirmation in Opposition, and annexed Exhibit.