Opinion
# 2011-015-245 Motion No. M-79622
07-19-2011
ENIO ANTONIO RODRIGUES v. THE NEW YORK STATE THRUWAY AUTHORITY
Synopsis
Application for late claim relief was granted with respect to movant's Labor Law § 241 (6) cause of action and otherwise denied. Claimant fell from rear of flatbed truck during the course of a project which entailed bridge painting. Case information
UID: 2011-015-245 Claimant(s): ENIO ANTONIO RODRIGUES Claimant short RODRIGUES name: Footnote (claimant name) : Defendant(s): THE NEW YORK STATE THRUWAY AUTHORITY Movant's caption in its Notice of Motion incorrectly named the Footnote State of New York and New York State Department of (defendant Transportation as defendants. The caption has been amended to name) : reflect the proper entity against whom movant seeks permission to file a late claim. Third-party claimant(s): Third-party defendant(s): Claim number NONE (s): Motion number M-79622 (s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's Sacks and Sacks, LLP attorney: By: David H. Mayer, Esquire Defendant's Malapero & Prisco, LLP attorney: By: Shannon L. Saks, Esquire Third-party defendant's attorney: Signature date: July 19, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Movant's application for late claim relief is granted with respect to his Labor Law § 241 (6) cause of action and otherwise denied.
The proposed claim alleges causes of action for negligence and violations of Labor Law §§ 200, 240 (1) and 241(6) as a result of injuries allegedly sustained by the movant on November 10, 2009 when he fell from a flatbed trailer during the course of his employment with Erie Painting and Maintenance, Inc. ("Erie"). Erie contracted with the New York State Thruway Authority for painting work on six bridges along the New York State Thruway (movant's Exhibit 6). According to movant's examination before trial testimony taken during the course of litigating his claim against the State of New York (Claim Number 117794), he was in the process of removing large tarps from the trailer when both feet slipped on grease on the floor of the trailer, causing him to fall from the trailer (movant's Exhibit 11, pp. 29-30), which measured approximately 25 feet by 12 feet and was approximately five or six feet high (movant's Exhibit 11, pp. 22, 25). Movant testified that the tarps were always removed from the trailer manually (movant's Exhibit 11, p. 28) and, on the day of the accident, he and a co-worker had removed one or two tarps before the accident occurred (movant's Exhibit 11, p. 27). Movant testified that the trailer was owned by Erie and moved from site to site as needed (movant's Exhibit 11, p. 23). According to movant's EBT testimony (movant's Exhibit 11, p. 20) safety harnesses were unnecessary for the performance of the work and no one other than his employer provided him instruction regarding the performance of his work (movant's Exhibit 11, pp. 19, 24).
During the course of litigating the claim against the State of New York, movant obtained a copy of the contract and learned, allegedly for the first time, that it was the New York State Thruway Authority ("Thruway Authority') and not the Department of Transportation which contracted with Erie for the performance of the work (movant's Exhibit 6). Counsel for movant asserts that he prepared and filed the instant application to file a late claim against the Thruway Authority immediately upon acquiring this information on February 23, 2011.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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". The first issue for determination upon a late claim motion is whether the application is timely.
Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." Since the proposed claim asserts a claim for personal injuries, the three-year Statute of Limitations set forth in CPLR § 214 applies. The instant motion is therefore timely.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]), and the statutory factors are not exhaustive nor one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).
The excuse advanced by movant's counsel for failing to timely file and serve the claim is that it was his belief that the work was performed for the New York State Department of Transportation, not the Thruway Authority. The failure to realize the entity with jurisdiction over the area where an accident or injury occurred is generally not a valid excuse for failing to timely file a claim (Littanzi v State of New York, 54 AD2d 1043 [1976]; Erca v State of New York, 51 AD2d 611 [1976]). Counsel avers that his mistaken belief was based, at least in part, on a letter from the State's insurance carrier, dated January 25, 2010, which stated "[a]t the time of the accident Erie Painting was under contract with The NYS DOT who subcontracted with the claimant's employer and was conducting work as part of bridge painting of various bridges, on the The NYS Thruway in Albany, Greene & Montgomery Counties" (movant's Exhibit 7). However, the claim against the State of New York was filed on December 14, 2009, prior to the date of the aforementioned letter. As a result, movant's counsel could not have relied on the misinformation contained in the insurance carrier's letter since it is dated subsequent to the date the claim was filed. Under these circumstances, movant's excuse for failure to timely file and serve the claim is unreasonable.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. While the State of New York obviously had timely notice of a claim, the New York State Thruway Authority did not. The fact that both the State and the Thruway Authority may be insured under the same policy, and may be defended by the same law firm, is no substitute for notice to the Thruway Authority which is "an autonomous public corporation, with an existence separate and independent from the State" (Bonaventure v New York State Thruway Auth., 108 AD2d 1002, 1003 [1985]). Nevertheless, the Thruway Authority has come forth with no evidence of prejudice. In addition, movant's counsel states that witnesses to the incident have been subpoened by the State in the companion claim, a circumstance which seems to indicate the Thruway Authority's ability to investigate the claim will not be hampered. Under these circumstances, no prejudice will befall the Thruway Authority in the event late claim relief is granted.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates "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 Misc2d 1, 11 [1977]).
Labor Law § 240 (1) imposes a nondelegable duty on owners and contractors to "furnish or erect, or cause to be furnished or erected . . . 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 [construction workers employed on the premises]." (Labor Law § 240[1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). However, not all perils connected "in some tangential way with the effects of gravity" invoke the protections afforded by the statute (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). "Rather, the 'special hazards' referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Id.; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). As stated by the Court of Appeals in Rocovich v Consolidated Edison Co. (78 NY2d 509, 514 [1991]): "The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." On several occasions the Court of Appeals has held that the risk of falling from the bed of a truck is not the kind of elevation-related risk that Labor Law § 240 (1) was intended to address. In Toefer v Long Is. R.R. (4 NY3d 399 [2005]) a workman was injured while unloading steel beams from a truck, four feet above ground level, when a wood lever used to pry the beams off the truck flew back and struck the workman with such force that he was caused to fall to the ground. The Court of Appeals held that a four-foot fall from the bed of a truck was not attributable to the sort of elevation-related risk that Labor Law 240 (1) was meant to address. In so holding, the Court rejected plaintiff's argument that the failure to provide a hoist (one of the devices enumerated in the statute) constituted a violation of the statute, stating: "Labor Law § 240 (1) is arguably implicated in this case only because [the workman] fell from the truck's trailer to the ground. The purpose of a hoist here would not have been to prevent [the workman] from falling; it would have been to prevent the beams themselves from doing damage. But [the workman] was not injured by a beam, or by any falling object . . ." (Id. at 408).
Likewise, in Marvin v Korean Air, decided together with Toefer, the plaintiff was injured when his foot became tangled in the safety harness he was wearing, causing him to fall four feet from the back of a trailer. The Court held that:
"A four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240 (1)'s coverage. Safety devices of the kind listed in the statute are normally associated with more dangerous activity than a worker's getting down from the back of a truck. Obviously, the distance between the work platform and the ground is relevant; no one would expect a worker to come down without a ladder or other safety device from a work platform that was 10 feet high. But the lesser distance Marvin had to travel, considering the nature of the platform he was departing from, was not enough to make Labor Law § 240 (1) applicable" (Id. at 408-409; see also Bond v York Hunter Constr., 95 NY2d 883 [2000] [risk of alighting from a construction vehicle was not an elevation-related risk which calls for any of the protective devices listed in Labor Law § 240 [1]).
In Intelisano v Sam Greco Constr., Inc. (68 AD3d 1321 [2009]) the plaintiff fell while attempting to ascend a 10-foot stack of bundled insulation on a flatbed trailer four feet above the ground. The Appellate Division, Third Department, recognized that "[w]hile falling from the bed of a truck is not [the] kind of elevation-related hazard contemplated by the statute, Labor Law § 240 (1) can be applied where some risk-enhancing circumstance implicates the protections of the statute" (Id. at 1323). The Court in that case found such circumstances existed since the plaintiff was required to ascend the 10-foot bundle of insulation without the use of a ladder or scaffold (see also Ford v HRH Const. Corp., 41 AD3d 639 [2007]). No such risk-enhancing circumstances exist in the case at bar. Rather, movant's own deposition testimony established that his alleged injuries were caused by a slip and fall from a distance of only five or six feet. He was otherwise able to safely ascend the trailer without the use of a ladder and had done so shortly before the accident (see Berg v Albany Ladder Co., Inc., 40 AD3d 1282 [2007], affd 10 NY3d 902 [2008]; Amantia v Barden & Robeson Corp., 38 AD3d 1167 [2007]). As a result, the accident was not caused by an elevation-related hazard for which one of the safety devices enumerated in Labor Law § 240 (1) was required. The cause of action alleging a violation of Labor Law § 240 (1) lacks merit as a matter of law.
Unlike Labor Law § 240 (1), Labor Law § 241(6) is not self-executing. In order to impose liability under this statute it must be shown that the movant's injuries were proximately caused by a violation of an Industrial Code regulation which sets forth a specific command or specification (see Ross v Curtis-Palmer Hydro-Electric Co., supra; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). In support of his Labor Law § 241 (6) cause of action the movant alleges, inter alia, a violation of Industrial Code § 23-1.7 (d) (12 NYCRR), which provides as follows:
"Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."
This section has been held sufficiently specific to support a Labor Law § 241 (6) claim and appears to be applicable to the facts alleged in the proposed claim (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 350-351; Kobel v Niagara Mohawk Power Corp., 83 AD3d 1435 [2011]). Thus, movant's Labor Law § 241 (6) cause of action has at least the appearance of merit based upon the alleged violation of the aforementioned section of the Industrial Code.
A contrary conclusion is reached, however, with respect to the movant's causes of action under Labor Law § 200 and for common law negligence. Labor Law § 200 is a codification of the common law duty of a landowner to provide workers with a reasonably safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). Where the alleged defect or dangerous condition arises from a contractor's methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law § 200 attaches (Comes v New York State Electric & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]). Where, on the other hand, a claimant is allegedly injured as a result of a dangerous or defective condition of the premises "there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time" for liability to be imposed on the property owner (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52 [2011]). Here, the movant testified that he received no instruction from Thruway Authority personnel with regard to the manner in which the work was to be performed (movant's Exhibit 11, p. 24). To the extent movant contends that the accident arose from the slippery condition of the trailer, which was owned by his employer, there is likewise no evidence that the Thruway Authority caused the condition or otherwise was aware of its existence. Accordingly, movant failed to establish that his proposed common law negligence and Labor Law § 200 causes of action appear to be meritorious (Matter of Allen v State of New York, 2002 WL 31940720 [2002], affd 4 AD3d 835 [2004]).
Regarding the existence of an alternative remedy, movant readily admits the availability of Workers' Compensation and that a lawsuit has been commenced against other contractors in the Supreme Court. While this final factor weighs against the movant, it is not determinative (see Lockwood v State of New York, 267 AD2d 832 [1999]).
Consideration of the statutory factors persuades this Court to grant late claim relief with respect to movant's Labor Law § 241 (6) cause of action. Accordingly, the motion is granted to this extent and otherwise denied. Movant is directed to file the claim (and pay any fee required by Court of Claims Act § 11-a) and serve the claim in accordance with law within 45 days of the date this Decision and Order is filed.
July 19, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated March 11, 2011;
2. Affidavit of David H. Mayer sworn to March 11, 2011with exhibits;
3. Affirmation of Shannon L. Saks dated April 25, 2011 with exhibits.
4. Reply affirmation of David H. Mayer dated May 3, 2011 with exhibit.