Late claim, Labor law denied , no notice.
|Claimant(s):||THOMAS TUCKER, JR. and NANCY TUCKER|
|Claimant short name:||TUCKER|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Claimant's attorney:||TOMKIEL & TOMKIEL
By: Stanley A. Tomkiel, III, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
Ellyn Wilder, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||May 3, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movants' late claim application and oral argument was heard on March 20, 2018:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits……......…….1
Defendant's Affirmation in Opposition and Exhibits…………………….......……2
The proposed claim alleges that on May 4, 2015, at approximately 8:00 a.m., Thomas Tucker, Jr.(1) was injured during the course of his employment as a cement mason for Tappan Zee Constructors, LLC of Tarrytown, New York (TZ Constructors). The New York State Thruway Authority (NYSTA) had contracted with TZ Constructors for the construction of the "New NY Bridge" to replace the Tappan Zee Bridge (Tappan Zee Hudson River Crossing Project Contract, Ex. H; Supporting Affirmation of Movants' Counsel, ¶ 2). Mr. Tucker's job required that he descend a ladder to patch concrete around a pier footing at Pier 41. The ladder descended approximately ten feet from a decking to the bottom of a tub around the pier footing. As Mr. Tucker descended the ladder, it suddenly shifted and caused him to lose his footing on the ladder. He caught himself from falling by hooking his left arm around a "railing"(2) and his supervisor, Louis Cruz, grabbed hold of Mr. Tucker and righted the ladder so that he could regain his footing on the ladder (Movants' Ex. A, ¶ 8). As Mr. Tucker's full body weight dangled from the ladder, he allegedly tore his rotator cuff and biceps tendon, which were surgically repaired in April of 2017, nearly two years after the accident.
Movants brought this late claim application eight months after Mr. Tucker's surgery and more than 2½ years after his accident. The proposed claim alleges that the accident was caused solely by the NYSTA's violations of Labor Law §§ 240 (1), 241 (6) and 12 NYCRR 23-1.21 in that the ladder was not properly secured and that said failure was a substantial factor in causing Mr. Tucker's injuries.
In support of this late claim application, movants submited: the affidavit of Mr. Tucker (Movants' Ex. B); Mr. Tucker's "Employee Statement" (Movants' Ex. C); the affidavit of an eye-witness to the accident, Mr. Tucker's foreman, Louis Cruz (Movants' Ex. D); excerpts from Mr. Tucker's medical records (Movants' Ex. E); the "Doctor's Initial Report" for the Workers' Compensation Board affirmed by Dr. Tin Tin Wynn on February 14, 2017, along with her attached office notes (Movants' Ex. F); the "Independent Examiner's Report of Independent Medical Examination" affirmed by Dr. Lawrence Schulman on July 28, 2017 (Movants' Ex. G) and excerpts from the construction project contract between the NYSTA and TZ Constructors (Movants' Ex. H). Mrs. Tucker did not submit an affidavit to support her derivative claim.
Mr. Tucker's affidavit explained that, to gain access to the pier footing where he worked as a cement mason, a ladder was placed at the bottom of a tub around the pier footing. The ladder extended up approximately one to two feet above the top of the decking where Mr. Tucker gained entry to the ladder. According to Mr. Tucker's affidavit:
"[t]he ladder was loosely tied on one side to a railing post on the decking for the safety rails that surrounded the opening. It was necessary to get onto the ladder from the side where it extended up above the decking because there was no access through the ladder rails because the rungs blocked direct access. . . so I held onto a safety rail to steady myself as I got onto the ladder"
(Movants' Ex. B, ¶ 1). Mr. Tucker's affidavit stated that, as he stepped onto the ladder from the side, the ladder footing slipped out and the ladder shifted (id. at 2). Mr. Tucker then lost his footing and began to fall. Mr. Tucker stated in his affidavit that his left arm hooked onto "the railing or a ladder rung, I am not sure which, and this kept me from falling" (id.). As Mr. Tucker was hanging by his left arm, Louis Cruz "immediately" grabbed Mr. Tucker "up a little and righted the ladder" so he could get his feet back onto the ladder (id.). Mr. Tucker then descended to the bottom of the ladder where he saw that "the feet of the ladder were not blocked in place and that they had no rubber non-slip devices because the ladder was the top half of an extension ladder" (id.).
As the day progressed, Mr. Tucker continued to feel pain in his left shoulder, which he reported to Cruz. Cruz took Mr. Tucker to the job-site medical office where he was examined by Physician Assistant Adam Matysiak. Matysiak told Mr. Tucker that he did not have a serious injury and that he could continue working.
Mr. Tucker left the medical office and went to the nearby safety office to report the incident to "safety personnel" (Movants' Ex. B, ¶ 3). Mr. Tucker was given an "Employee Statement" form to complete, which he completed and returned to the "site safety office" on the following day (id.). Mr. Tucker's Employee Statement indicates that an extension ladder was tied on the side of a catwalk (Movants' Ex. C). Mr. Tucker stepped onto the ladder and it kicked out, prompting him to call Cruz for help as Mr. Tucker hooked his left arm onto the catwalk railing to keep from falling. Cruz assisted Mr. Tucker and he regained his footing (id.).
Mr. Tucker's affidavit at ¶ 6 states:
"I believe my employer should have records of this accident because I reported the injury the same day and reported to the jobsite medical office. I was told by Mr. Cruz that . . . site safety men went to the place of [the] accident, took pictures and secured the ladder. I remember that after my accident, because it involved an unsecure ladder, that instructions were issued by my employer to the ladder crews throughout the jobsite to make sure all ladders were tied and secured. The NYS Thruway Authority had safety inspectors throughout the site on a regular basis. I expect that they would have been informed of my accident because it involved an unsafe ladder, and that was an important safety issue at this site. I also expect that records of Tappan Zee Constructors, LLC contain all the information about my accident, including photos, and that the Thruway Authority would have ready access to those records [emphasis added]"
(Movants' Ex. B, ¶ 6).
According to the affidavit of Louis Cruz, he began working as a general foreman for the concrete work performed by TZ Constructors on the New NY Bridge in May 2014 (Movants' Ex. D). On May 4, 2015, at approximately 8:00 a.m., Cruz witnessed Mr. Tucker step onto the top half of an extension ladder. The ladder had been placed inside a tub and extended 10 feet upwards to a decking which was surrounded by a temporary railing system to prevent workers from falling into the tub. The top of the ladder was leaning against the inside top of the tub. According to Cruz, "[t]he ladder was tied to the railing, but it was secured on only one rail of the ladder. This did not prevent the ladder from shifting" (id. at ¶ 4).
Cruz's affidavit states that Mr. Tucker stepped off the deck and onto the ladder and descended a step or two. The ladder then suddenly shifted, pulling away on one side, and the footing of the ladder kicked back as well (id.). Mr. Tucker began to fall and caught himself by hooking his left elbow over "a rail" (id.). As Mr. Tucker was hanging with his feet dangling, Cruz pulled the ladder back into position and pulled Mr. Tucker back onto the ladder. Thereafter, Mr. Tucker and Cruz descended the ladder. Cruz observed that the bottom of the ladder had "no rubber pads or feet to secure it and there was no kick plate at the bottom to hold the footing in place" (id.).
Cruz went with Mr. Tucker to the job site medical office where Mr. Tucker was seen by the physician assistant. According to Cruz, "[i]t is my understanding that [the physician's assistant] also reported the accident to the site safety officer for this job because that was the procedure when a worker was injured" (id. at 5). Shortly thereafter, Cruz returned to the site and observed "two site safety men" investigating the accident (id. at 6). One was a man named Dave Stanford. Cruz does not recall the other man's name, but believes that the two men were still employed at the site as of October 2017. Cruz does not state who employed the men. According to Cruz, the two men "took pictures and made a report" (id.).
According to Mr. Tucker's affidavit, he continued working while experiencing "some pain" in his shoulder (Movants' Ex. B). Mr. Tucker believed that the pain would dissipate with time and he did not want to stop working because he was highly paid in his position (id.). The pain worsened "over time" and the range of motion in his shoulder deteriorated to such a degree that he sought medical care at the end of January 2017 by visiting his primary care doctor, James Trapasso. Dr. Trapasso referred Mr. Tucker to an orthopedist. The orthopedist recommended physical therapy.
Mr. Tucker underwent physical therapy to no avail. On February 8, 2017, Mr. Tucker was examined by Dr. Tin Tin Wynn. On February 14, 2017, Dr. Wynn completed a Doctor's Initial Report for Workers' Compensation and found that Mr. Tucker's work accident on May 4, 2015 was the cause of his injuries to his shoulder and his biceps tendon (Movants' Ex. F, pp 3, 4). Dr. Wynn ordered an MRI on February 24, 2017 and referred Mr. Tucker to Dr. Nicole Belkin. Dr. Belkin performed arthroscopic surgery to repair Mr. Tucker's torn rotator cuff and biceps tendon on April 6, 2017 (Movants' Ex. E). Thereafter, in April 2017, Mr. and Mrs. Tucker retained an attorney because they realized that Mr. Tucker's injury could affect his future earning ability.
Mr. Tucker was medically cleared to return to work on July 10, 2017. Mr. Tucker returned to work, but had to stop working in September 2017 due to continuing shoulder problems (Movants' Ex. B, ¶ 4). On July 18, 2017, Mr. Tucker was examined by Dr. Lawrence Schulman who provided an "Independent Examiner's Report of Independent Medical Examination" for Workers' Compensation and found Mr. Tucker to have a mild to moderate disability referable to his left shoulder (Movants' Ex. G, p 3).
In December 2017, eight months after Mr. Tucker's surgery and more than 2½ years after his accident, Mr. and Mrs. Tucker filed this application for leave to serve and file a late claim. Defendant opposes the motion and the Court heard oral argument on March 20, 2018.
In considering a late claim application, Court of Claims Act § 10 (6) requires that the Court consider, among other relevant factors: (1) whether the delay in filing the claim was excusable; (2) whether defendant had notice of the essential facts constituting the claim; (3) whether 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 resulted in substantial prejudice to defendant; and (6) whether the movants 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 ).
In addressing the reasonableness of the delay, movants' counsel acknowledged at oral argument that movants' excuse was perhaps not reasonable, but it was understandable. He explained that Mr. Tucker wanted to continue working and that it was not until he was told in February 2017 that he required surgery that he realized that his injury was serious and could affect his future earning ability. Movants waited until after Mr. Tucker's surgery on April 6, 2017 to consult an attorney. Defense counsel correctly argued at oral argument that the claim accrued on the date of the accident, May 4, 2015, and not when Mr. Tucker discovered he needed surgery in February 2017. Defense counsel further noted that the "Release of Medical Information and Return to Work Status" form signed by Mr. Tucker and Physician Assistant Adam Matysiak on the date of the accident directed Mr. Tucker to "[r]eturn to clinic or ER if symptoms worsen" (Defendant's Ex. B). Therefore, Mr. Tucker was expressly informed that there was a potential for his symptoms to worsen and that if that occurred, then he should seek medical care. Nonetheless, despite his continued pain during the 90-day period after his accident, he did not seek any medical care for nearly two-years post-accident. Further, movants did not bring this late claim application until eight months after Mr. Tucker's surgery and more than 2½ years after his accident.
It is further noted by the Court that movants could have, within 90 days of the accident, timely served a Notice of Intention to File a Claim upon the NYSTA, whose identity was known to movants. This would have extended movants' time to serve and file a claim for two years from the date of the accident (Court of Claims Act § 10 ). Additionally, it would have given the NYSTA timely notice and an opportunity to investigate the circumstances underlying the claim. In addition, movants would have been afforded the time to determine whether Mr. Tucker's injury was significant enough to bring a claim. Thus, the Court finds that movants' purported excuse for the delay is essentially that they did not know they could have timely served a Notice of Intention to File a Claim; this is ignorance of the law, which is not a reasonable excuse for delay with regard to a late claim application (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015]). Thus, the Court finds that movants have failed to provide a reasonable excuse for the delay.
The next factor considered by the Court is whether the NYSTA had notice of the essential facts constituting the claim. Movants rely upon Section DB-107-7.3 of the contract between TZ Constructors and the NYSTA to establish that TZ Constructors notified the NYSTA of the accident (Movants' Ex. H, p 136). The Court notes that at oral argument movants did not argue that the NYSTA did in fact receive notice from TZ Constructors, but that a reasonable inference could be drawn from the terms of the contract and the affidavits of Mr. Tucker and Cruz.
Specifically, movants' counsel refers to the terms of the contract which required that TZ Constructors notify the NYSTA in writing within 24 hours with the details relative to an accident or incident occurring on site, if the incident was a "near miss" (id.). The contract does not define "near miss." At oral argument, movants' counsel submitted definitions of a "near miss" from OSHA's Incident Investigations: A Guide for Employers and the National Safety Council defining a "near miss" as an event which does not result in injury, illness or damage, but has the potential to do so. Movants' counsel argued that the accident constituted a "near miss" and therefore should have been reported to the NYSTA pursuant to the terms of the contract. Defense counsel argued that there is no proof that the accident was characterized as a "near miss" by TZ Constructors, thereby triggering the requirement that TZ Constructors provide the NYSTA with written notice of the details of the accident within 24 hours of its occurrence. Rather, defense counsel argued that the accident was an inconsequential event which did not constitute a "near miss." Defense counsel also denied knowledge of any notice of the accident, either written of otherwise, provided to the NYSTA.
The Court finds that the affidavits upon which movants rely are insufficient to establish that the NYSTA received notice of the accident. Indeed, Cruz's affidavit states only that it was his understanding that the physician assistant was to report the accident to the site safety officer and that Cruz saw two site safety men taking pictures and making a report (Movants' Ex. D). Cruz's affidavit does not establish that his duties as foreman included knowledge of the requirements for providing notice to the NYSTA of site accidents nor does Cruz have personal knowledge that the NYSTA actually received notice of Mr. Tucker's accident. Further, Cruz's reference to site safety men is vague and conclusory as to whether they were in fact making a report of Mr. Tucker's accident and whether such report was provided to the NYSTA.
Mr. Tucker's affidavit is purely speculative on the issue of notice to the NYSTA. Mr. Tucker's affidavit states merely that, he "believe[s]" TZ Constructors "should have" records of his accident because he reported it to the physician assistant on site and Cruz saw two safety men taking pictures and making a report (Movants' Ex. B). The affidavit further states that there were NYSTA safety inspectors throughout the site on a regular basis and that he would "expect" that the inspectors would have been informed of his accident (id.). Mr. Tucker also "expect[s]" that TZ Constructors has all the information about his accident including photographs and that the NYSTA should have access to those records (id.). The Court finds that Mr. Tucker's self-serving statements as to what he believes or expects should have been done by TZ Constructors and what should be accessible to the NYSTA does not establish what in fact was done or was accessible to the NYSTA.
In sum, the Court finds that the affidavits of Cruz and Mr. Tucker do not establish that any purported investigation done by TZ Constructors regarding Mr. Tucker's accident was shared with or made accessible to NYSTA. Notably, neither Cruz nor Mr. Tucker state that they were ever questioned by the site safety men who were purportedly investigating Mr. Tucker's accident. Nor did the site safety men consult Mr. Tucker or Cruz about the taking of photographs of the accident site. The argument that there were safety inspectors regularly on site and that they regularly conducted safety meetings fails to establish that Mr. Tucker's accident was discussed at any of those meetings and reported to the NYSTA. Finally, the argument of movants' counsel, that TZ Constructors has a full report of its investigation of the accident with photographs and that all the NYSTA has to do is ask for it, is self-serving and wholly unsupported by the record. Thus, the Court finds that the NYSTA did not receive notice of Mr. Tucker's accident (see Matter of Kumar v Dormitory Auth. of the State of N.Y., 150 AD3d 1117 [2d Dept 2017]).
With regard to the next factor considered by the Court, as to whether the NYSTA had an opportunity to investigate the circumstances underlying the claim, movants' arguments presuppose that an investigation was in fact done by TZ Constructors and was accessible to the NYSTA. As noted in the Court's consideration of the previous factor, the Court finds that any purported investigation done by TZ Constructors was not shown to have been shared with or made accessible to the NYSTA. Accordingly, the Court finds that the NYSTA did not have an opportunity to investigate the circumstances underlying the claim.
Whether the NYSTA has suffered substantial prejudice from movants' delay is intertwined with the preceding two factors considered by the Court. Contrary to movants' arguments, the Court finds that movants have not made a sufficient initial showing that the NYSTA would not be substantially prejudiced by the delay (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 ). Rather, the Court finds that the NYSTA effectively argued that it is substantially prejudiced by the more than 2½-year delay post-accident in the ability to conduct a through investigation of the circumstances surrounding the facts of the accident as the construction project has been nearly completed (see Matter of Garguiolo v New York State Thruway Auth.,145 AD2d 915, 916 [2d Dept 1988] [defendant prejudiced by six-month delay due to the changing nature of the construction site where movant was injured]). Additionally, there are no medical records regarding Mr. Tucker's physical condition until nearly two-years post-accident; therefore it cannot be determined what his condition was close in time to the accident or whether his condition worsened over time or is unrelated to the accident nearly two-years prior to his surgery (see Innis v State of New York, 92 AD2d 606 [2d Dept 1983] [no excuse for more than two-year delay in bringing a late claim application warranted denial of application]). Accordingly, the Court finds that the NYSTA is substantially prejudiced by the more than 2½-year delay in bringing this late claim application.
The next factor to be considered is whether the proposed claim has an appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (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] ). The derivative claim of Mrs. Tucker is wholly unsupported by any evidence of an appearance of merit. Mr. Tucker, on the other hand, has demonstrated an appearance of merit regarding his allegations that movant's accident was caused by defendant's violations of Labor Law §§ 240 (1), 241 (6) and 12 NYCRR 23-1.21 in that the ladder was not properly secured and that said failure was a substantial factor in causing his injuries (see Baugh v New York City Sch. Constr. Auth., 140 AD3d 1104 [2d Dept 2016]; Ortiz v Turner Constr. Co., 28 AD3d 627 [2d Dept 2006]). Thus, while Mr. Tucker has shown an appearance of merit of his proposed claim, Mrs. Tucker has not.
The next factor considered is whether movants have another available remedy. Here, it was established that Mr. Tucker successfully pursued an alternative remedy via Workers' Compensation (Movants' Exs. B, E, F). Therefore, Mr. Tucker has another available remedy (see Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]). However, Mrs. Tucker does not have another available remedy.
The Court finds that, upon weighing all the aforenoted factors, movants have not demonstrated that their application for leave to serve and file a late claim should be granted.
Accordingly, the Court DENIES the movants' application for leave to serve and file a late claim.
May 3, 2018
White Plains, New York
Judge of the Court of Claims
1. The proposed claim alleges that Nancy Tucker, as the wife of Mr. Tucker, suffered a loss of services, society, companionship and consortium of her husband as a result of his accident.
2. Mr. Tucker's Affidavit states that he is unsure if he hooked his arm over a rung of the ladder or on a railing (Movants' Ex. B, ¶ 2).