New York State Court of Claims

New York State Court of Claims
THOMPSON v. THE STATE OF NEW YORK, # 2018-041-055, Claim No. NONE, Motion No. M-91851


Application to file late claim is granted as allegations provide cause to believe that a meritorious claim for Labor Law violations resulting in personal injury may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim.

Case information

UID: 2018-041-055
Claimant short name: THOMPSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91851
Cross-motion number(s):
Claimant's attorney: EDELMAN KRASIN & JAYE
By: Brian J. Isaac, Esq. and Paul B. Edelman, Esq., of Counsel
Defendant's attorney: CARTAFALSA, TURPIN & LENOFF
By: Christopher J. Turpin, Esq.
Third-party defendant's attorney:
Signature date: August 22, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the motion.

The claimant alleges that defendant is liable, pursuant to Labor Law 240 (1) and 241 (6), for injuries and damages sustained by claimant on April 3, 2017 when, according to claimant's affidavit:

"[W]hile performing repair/construction work on a bridge on Route 28 in upstate New York. I was employed by Ecco III Enterprises Inc. As I was coming down from a lead ladder, my hand slipped off the ladder and I stepped on a river rock causing my foot to slip off twisting my knee and causing me to fall."

Claimant further states in his affidavit that he suffered a "torn anterior cruciate ligament in my left knee." The application shows that the defendant is the owner of the "bridge on Route 28" where claimant was injured while employed in "repair/construction work."

Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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." The proposed claim accrued on April 3, 2017 and this application was made on February 12, 2018. CPLR 214 (5) provides a three year period to commence an action for personal injury and the application is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act 10 (6) provides that:

"[T]he court shall consider, among other 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."

In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant's attorney argues that the delay in timely serving and filing the claim is reasonable because he was unaware that claimant had been injured on a "state-sponsored bridge project" located on "state-owned land" and because he and the claimant were unaware of the severity of claimant's knee injury.

The Court finds that the failure to timely identify New York State as a proper potential defendant does not constitute a reasonable excuse for untimely filing and service of a claim (see Erca v State of New York, 51 AD2d 611 [3d Dept 1976], aff'd 42 NY2d 854 [1977]). Similarly, the decision by claimant's attorney to take a "wait and see" attitude with respect to the seriousness of claimant's injuries does not amount to a reasonable excuse for delay in serving and filing a claim (DeGroff v State of New York, 43 AD2d 993 [3d Dept 1974]: "[R]ecord reveals that claimant went to a doctor immediately . . . and that he was represented by an attorney . . . Under these circumstances, we conclude that the Court of Claims abused its discretion in finding that a reasonable excuse for failure to file existed. It has been repeatedly held that a cause of action arises at the time the injury is inflicted, not when the extent of the damages is ascertained").

Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).

Claimant's application demonstrates that the defendant had prompt notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. The "Initial Data Report for Accident Report Number 08-001-2017" (Accident Report) was generated on April 5, 2017, two days after the accident. Defendant does not dispute receiving the Accident Report. The Accident Report provided nearly immediate notice that a construction worker had been injured on the "Route 28, Big Indian, NY, Bridge Construction Site" while "dismounting pile lead ladder." Follow-up e-mails regarding the accident were exchanged by defendant's employees/agents, and contractors at the work site, on April 11, 2017. Further, claimant offers a copy of the "NYSDOT SiteManager Reporting System" for the Route 28 Bridge Project which shows that on "Diary Date" April 3, 2017 "[a]n apprentice carpenter twisted his knee when he came off lead ladder and landed on a rock. Accident Report on file." At a minimum, the Accident Report and related documents gave defendant prompt notice that a construction worker on a state construction/repair project had sustained a work-related injury in an accident involving a ladder.

Claimant's submissions showing that defendant's employees and/or agents had prompt notice of the nature of the accident satisfy his initial burden of demonstrating that defendant will not be substantially prejudiced by late service and filing of the claim.

In response, defendant asserts that claimant's failure to timely serve and file a claim "may result in substantial prejudice to the State" because of "the 'transitory nature' of the alleged condition that gave rise to the claimant's injury." The record shows, however, that defendant was aware almost immediately that an injury, however apparently slight, had occurred involving a ladder and a construction worker on a state project. Yet defendant apparently took no steps to further investigate, at least minimally, the condition or equipment involved in the injury.

Significantly, defendant offers no persuasive evidence or argument to show actual prejudice beyond the passage of time, which "normally will not constitute substantial prejudice in the absence of some showing of actual injury" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]). The claim accrued on April 3, 2017 and a claim or notice of intention to file a claim was required to be served on defendant within ninety (90) days of accrual (see Court of Claims Act 10 [3]). Service could have been made as late as July 3, 2017 (the ninetieth day, July 2, 2017, was a Sunday). This application was made on February 12, 2018, just over seven (7) months later. Defendant has not shown what actions it could have undertaken, but now cannot, within that seven (7) month period of elapsed time.

While a workers' compensation claim offers a partial alternative remedy to claimant (a remedy that provides claimants no opportunity for recovery of damages for pain and suffering), it is not determinative of the claimant's application (see Lockwood v State of New York, 267 AD2d 832 [3d Dept 1999]; Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]).

Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."

Defendant has not offered factual opposition to the allegations of the affidavits supporting the late claim application regarding how claimant was injured and those allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

Claimant essentially alleges that he was injured as he alighted from a ladder and struck a rock. Claimant has not identified any common law negligent acts or omissions of the State of New York but asserts that defendant is strictly liable pursuant to Labor Law 240 (1) for an alleged failure to provide "fall protection" to claimant and that defendant is also liable under Labor Law 241 (6) based upon a violation of 12 NYCRR 23-1.7 (e) [2], which requires that all floors, passageways and working areas be kept free from accumulations of dirt, debris, scattered tools and materials and from any other obstructions or conditions which could cause tripping.

Labor Law 240 (1) provides as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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."

In Rocovich v Consolidated Edison Co. (78 NY2d 509, 513 [1991]), the Court of Appeals explained that:

"The legislative purpose behind this enactment is to protect 'workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who 'are scarcely in a position to protect themselves from accident' (Koenig v Patrick Constr. Co., 298 NY 313, 318)."

Courts are required to "liberally construe the statute to effect its purpose of protecting workers" (Hodges v Boland's Excavating and Topsoil, Inc., 24 AD3d 1089, 1091 [3d Dept 2005] lv denied 6 NY3d 710 [2006]).

The Court of Appeals reminded, in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521, 524 [2012]), that:

"Labor Law 240 (1), one of the most frequent sources of litigation in the New York courts, provides rights to certain workers going well beyond the common law. As we have long held, it imposes liability even on contractors and owners who had nothing to do with the plaintiff's accident; and where a violation of the statute has caused injury, any fault by the plaintiff contributing to that injury is irrelevant"

Labor Law 241 (6) states that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

"Labor Law 241 (6) imposes a nondelegable duty on owners and general contractors to ensure that '[a]ll areas in which construction . . . work is being performed' are maintained in a safe condition. The areas that must be kept in a safe condition include not only the actual construction sites but the passageways the workers must travel through to get to and from those areas" (Bruder v 979 Corp., 307 AD2d 980, 981 [2d Dept 2003], lv denied 1 NY3d 502 [2003]).

"To support a cause of action under Labor Law 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" (Rivera v Santos, 35 AD3d 700, 702 [2d Dept 2006]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]; Ares v State of New York, 80 NY2d 959, 960 [1992]).

While far from comprehensive, the originally proposed claim, together with the attached affidavits and documents, alleging that the claimant was injured while employed on a New York State construction/repair project and that his injury was caused by the defendant's failure to comply with Labor Law 240 (1) and 241 (6), is not patently without merit (see Dippolito [192 Misc 2d at 397] reminding that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits").

Based upon a balancing of the factors set forth in 10 (6), and based upon all of the supporting papers and exhibits, including the minimally sufficient proposed claim attached as an exhibit to the Notice of Motion, the Court grants the claimant's application. The Court additionally notes that, in the affirmation in reply submitted in response to defendant's opposition papers, claimant has submitted, as an exhibit, "an amended proposed claim," to which no objection was made.

Claimant is directed to file and serve his "amended proposed claim" (claim) in compliance with 11 and 11-a of the Court of Claims Act within thirty (30) days of the filing of this decision and order with the Clerk of the Court of Claims.

August 22, 2018

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, filed February 13, 2018;

2. Affirmation of Brian J. Isaac, dated February 12, 2018, and attached exhibits, including affirmation of Paul B. Edelman, dated January 18, 2018, and affidavit of Edward Thompson, sworn to February 6, 2018;

3. Affirmation in Opposition of Christopher J. Turpin, dated May 14, 2018;

4. Reply Affirmation of Brian J. Isaac, dated June 12, 2018, and attached exhibit.