Fowx v State of New York
Annotate this CaseDecided on July 14, 2006
Ct Cl
Legrand Fowx, II, Claimant,
against
State of New York, Defendant.
M-71926
Claimant's attorney:Feldman, Kleidman & Coffey, L.L.P. By: Marsha S. Weiss, Esq.
Defendant's attorney:Hon. Eliot Spitzer, Attorney General of the State of New York By: Dian Kerr McCullough
Stephen J. Mignano, J.
The proposed claim attached to the motion papers as Exhibit B, and the attorney's affirmation allege that on July 24, 2004, movant was an employee of Commercial Instruments and Alarms which had been retained by the defendant to update the fire alarm system and repair and reinstall smoke detectors at a residence on Belden Road in Carmel, New York. It is further alleged that at approximately 4:00 pm claimant was standing on a ladder which was owned by the defendant when the ladder suddenly moved causing movant to brace himself against an adjoining wall to prevent himself from falling and he felt his shoulder "pop out." Movant sought medical treatment and was diagnosed with a torn capsule of his left shoulder. Surgery was performed. The proposed claim asserts causes of action for negligence and violation of Labor Law §200, §240 (1) and §241 (6).
In deciding movant's motion for permission to file an untimely claim, the Court must 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 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 movant has another available remedy. In the exercise of its discretion, the Court balances these factors and, as a general rule, the presence or absence of any one factor is not dispositive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).
While the presence or absence of any one of the six factors is not dispositive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, supra), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit, it would be meaningless and futile for the Court to grant the application even if all other factors in Court of Claims Act § 10 (6) favored the request (see Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).
Labor Law § 200 is a codification of the common law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work. However, a distinction [*2]has been drawn between those cases in which an injury is caused by a defective condition of the premises and those in which the injury results from defective equipment or its operation. If the injury results from defective equipment or its operation, rather than a defect in the premises, the movant must demonstrate that the owner or contractor exercised some degree of supervision or control before liability will attach (Miller v Wilmorite, Inc., 231 AD2d 843). The proposed claim alleges, at Paragraph 3, that the defendant, "allowed, permitted and /or provided claimant to use a ladder which was defective, dangerous, not properly suited for the purpose for which it was to be used, failed to provide claimant with proper equipment while working at an elevation..." If proven at trial, this allegation could bring the defendant within the degree of supervision or control necessary to state a claim pursuant to Labor Law § 200 and the rationale set forth in Miller (supra). While the facts are presently insufficient to determine the validity of this claim, giving the benefit of the doubt to the movant raises an issue of fact with regard to the equipment utilized by movant at the time of his injury. Therefore, movant has alleged at least a colorably meritorious claim in regard to Labor Law § 200.
Likewise, movant has alleged a colorably meritorious claim pursuant to Labor Law § 240 (1), which imposes a nondelegable duty upon an owner to provide and operate safety devices to protect workers from the danger of falling from an elevated work site (Donovan v City of Buffalo, 185 AD2d 703). In addition, if claimant was injured as a result of an unsecured ladder, the defendant could be liable (Lacey v Turner Const. Co., 275 AD2d 734; Madden v Trustees of Duryea Presbyt. Church, 210 AD2d 382), at least in the absence of a recalcitrant worker or other applicable defense. Again, these issues merit additional evidentiary inquiry and justify exercise of this Court's discretion.
Turning to the Labor Law § 241 (6) cause of action, a claimant asserting such a cause of action must allege a violation of a specific provision of the Industrial Code (see Ross v Curtis-Palmer Hydro- Elec. Co., 81 NY2d 494). Here, movant's counsel has stated, in general and conclusory fashion, that the rules and regulations of the Commissioner have been violated (Weiss affirmation, unnumbered page 4, unnumbered paragraph). Such general allegations do not allow the Court to determine whether the proposed cause of action is patently groundless, frivolous or legally defective or if there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). This is a statutorily different standard than if movant had timely filed his claim. This Court is aware that the Appellate Division, Second Department held in Kelleir v Supreme Indus. Park, LLC,(293 AD2d 513) that the failure to identify the Industrial Code provision in the complaint or the bill of particulars is not fatal to the claim and may be raised for the first time in response to a defense motion for summary judgment. However, Court of Claims Act §10 (6) specifically requires the Court to determine that the proposed claim has at least the appearance merit. In order to determine whether a valid cause of action exists under Labor Law § 241 (6) the provision of the Industrial Code must be alleged and movant's papers are insufficient for the purposes of this motion.
The next factor to be considered is whether the delay in filing the claim is reasonable. Movant asserts two excuses for failing to timely file a claim or serve a notice of intention. The first is ignorance of the Court's filing requirements. This is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756). The second is that he was pursuing medical care for his injury and did not consult an attorney until the time to file had expired. The excuse for [*3]failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930). Here, the 90-day period expired on October 22, 2004. Counsel's affirmation asserts that movant was pursuing medical care. However, movant has submitted neither a physician's affidavit nor hospital records to establish an alleged incapacity (Cabral v State of New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613; Rios v State of New York, 67 AD2d 744).
Other factors to be addressed - whether the defendant had notice of the essential facts constituting the claim, whether the defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to the defendant - are interrelated and will be considered together. Movant asserts that he informed his employer and State employees of his accident the day after it occurred ( Fowx affidavit, para. 9, Ex A attached to motion). The State has not submitted any documents nor an affidavit from an employee to establish that the State did not have notice of the facts or an opportunity to investigate the matter (see Calzada v State of New York, 121 AD2d 988). The State has not asserted any substantial prejudice should the motion be granted. Therefore, I find that these three factors weigh in movant's favor.
It appears that movant may have at least a partial alternate remedy in Workers' Compensation benefits. Nonetheless, movant's action against the defendant is not limited by the Workers' Compensation Law since movant is not an employee of the defendant (see Workers' Compensation Law § 2 [Subdivisions 3 and 4]). To the extent that Workers' Compensation may be available to movant, it has not been established to be a sufficient alternative remedy so as to bar the instant claim.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in movant's favor for the causes of action alleging a violation of Labor Law §§200 and 240 (1), but not §241 (6). The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988; Plate v State of New York, 92 Misc 2d 1033). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim as set forth above. Therefore, within thirty (30) days of the date of filing of this decision and order, movant should file with the Court his proposed claim asserting violations of Labor Law §§ 200 and 240 (1) only, and serve a copy of the proposed claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the claim, movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
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