Opinion
# 2017-041-007 Claim No. 118996 Motion No. M-88940 Cross-Motion No. CM-89544
02-21-2017
KATHRYN VOLZ v. THE STATE OF NEW YORK
GREY & GREY, LLP By: Steven D. Rhoads, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Daniel S. Hallak, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim for lack of subject matter jurisdiction based upon the exclusivity provisions of the Workers' Compensation Law and for failure to adequately state injuries is denied: Workers' compensation as an exclusive remedy is a defense raised by answer or motion and its potential applicability as a defense to claim does not deprive Court of Claims of subject matter jurisdiction; notice of intention and claim adequately stated claimant's injuries; defendant's motion to dismiss claim is treated as motion to amend answer to add workers' compensation defense and is denied as meritless; claimant's cross-motion to amend claim to assert inapplicability of workers' compensation defense is granted.
Case information
| UID: | 2017-041-007 |
| Claimant(s): | KATHRYN VOLZ |
| Claimant short name: | VOLZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118996 |
| Motion number(s): | M-88940 |
| Cross-motion number(s): | CM-89544 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GREY & GREY, LLP By: Steven D. Rhoads, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Daniel S. Hallak, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 21, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves (M-88940) to dismiss the claim for lack of subject matter jurisdiction and for failure to state a cause of action. Specifically, defendant asserts that the Court of Claims lacks subject matter jurisdiction over the claim based upon the exclusivity provisions of the Workers' Compensation Law and because the claim fails to adequately state claimant's injuries as required by Court of Claims Act 11 (b). Defendant further argues that the claim fails to state a cause of action because claimant allegedly failed to expressly plead the inapplicability of the exclusive remedy provided by the Workers' Compensation Law.
Claimant opposes the defendant's motion to dismiss the claim and cross-moves (CM-89544) for permission to serve an amended claim curing the alleged Workers' Compensation Law pleading deficiency. Defendant opposes the claimant's cross-motion.
Claimant was employed by the State University of New York at Farmingdale (SUNY Farmingdale) on September 15, 2009, when she was injured due to an allegedly defective condition on the SUNY Farmingdale campus. Claimant was injured when she tripped on an unsecured metal plate on the SUNY Farmingdale campus premises during her lunch break. The claim alleges that claimant suffered severe and permanent injuries to "her right wrist." Despite being employed by the State of New York and having been injured on her employer's premises while at work, claimant did not pursue a workers' compensation claim because, as she testified at deposition, "it is not Workers' Compensation because I was on my lunch hour."
The claim was served on September 29, 2010 and made no specific mention of claimant's employment at SUNY Farmingdale. The defendant's answer did not raise a defense based upon the exclusive remedy provisions of the Workers' Compensation Law. At the very latest, defendant learned of claimant's employment with the defendant State of New York on February 10, 2012, when she testified at her examination before trial. Defendant did not, and has not, moved to amend its answer to assert a defense that the claim is barred by the exclusivity provisions of the Workers' Compensation Law. Nearly 4½ years after learning of the availability of a Workers' Compensation law defense, defendant has moved to dismiss the claim, asserting that the Court lacks subject matter jurisdiction.
In Levine v State of New York (105 AD2d 289 [3d Dept 1985]), the defendant, appealing a judgment of the Court of Claims, "argued that the exclusivity of workers' compensation as a remedy ousts the Court of Claims of jurisdiction to hear her claim and renders its decision void." The Levine court disagreed and held that "inordinate and inexcusable delay in giving utterance to this jurisdictionally critical issue makes a waiver [of the workers' compensation exclusive remedy] unavoidable" (Levine, 105 AD2d at 290).
The Levine case demonstrates that the exclusive remedy provision of the Workers' Compensation Law does not deprive the Court of Claims of subject matter jurisdiction but, instead, is a waivable defense to be asserted by the defendant in a pre-answer motion to dismiss or in its answer (see New York Pattern Jury Instructions--Civil, Volume 1B, PJI 2:215 [I] [c]).
The point is further illustrated by Murray v City of New York (43 NY2d 400, 407 [1977]):
"Although the issue [workers' compensation exclusive remedy defense] may be waived . . . such waiver is accomplished only by a defendant ignoring the issue to the point of final disposition itself and, in this sense, it is not the kind of subject-matter jurisdiction deficiency which ousts a court of competence to decide the case."
The defendant's motion to dismiss the claim because the Court of Claims allegedly lacks subject matter jurisdiction based upon the exclusive remedy provision of the Workers' Compensation Law is denied.
The Court's inquiry does not end there, however. Claimant's attorney argues in his answering affirmation that the defendant's "attempt to raise [the workers' compensation exclusive remedy] is equivalent to seeking leave to amend its Verified Answer to plead same as an Affirmative Defense."
The Court agrees, and will treat this aspect of defendant's motion to dismiss the claim as a request to amend its answer to assert its alleged workers' compensation defense (see Court of Claims Act 9 [8]).
CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR R 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]).
Defendant has not waived its alleged workers' compensation defense. In Shine v Duncan Petroleum Transport, Inc. (60 NY2d 22, 27 [1983]), the Court of Appeals held that:
"[W]hile the defense of workers' compensation could be waived, leave to amend pleadings to include such defense should be freely granted, even in midtrial, in the absence of operative prejudice."
The trial court has discretion to deny a motion to amend the answer to assert a workers' compensation defense where the claimant has:
"[D]emonstrated prejudice resulting from defendant's delay. [Claimant] was required to establish prejudice accruing to him as a consequence of defendant's failure to timely assert the defense, and to include a showing that the prejudice could have been avoided if the defense had been timely asserted" (Caceras v Zorbas, 74 NY2d 884, 885 [1989]).
Claimant argues that defendant's delay in raising the workers' compensation defense has caused her prejudice in that her time to file a workers' compensation claim has expired.
In this regard, the Court notes that claimant's deposition transcript shows that she was made aware of the potential for a workers' compensation claim by her employer soon after her injury. Claimant and her attorneys made their own determination, at least as early as claimant's deposition on February 10, 2012, not to pursue a workers' compensation claim.
While it would have been preferable if the workers' compensation issue had been raised by the parties earlier, so that the Court could have stayed the action and referred resolution of the issue to the Workers' Compensation Board, it is clear that at this stage of the proceedings (7½ years post-accident), a stay and referral would be prejudicial to the claimant. The Court is therefore constrained to address the merit of the alleged defense (see New York Pattern Jury Instructions--Civil, Volume 1B, PJI 2:215 [I] [c]; Shine v Duncan Petroleum Transport, Inc. 60 NY2d 22 [1983]; Murray v City of New York (43 NY2d 400 [1977]).
The asserted defense lacks merit. In Matter of Huggins v Masterclass Masonry (83 AD3d 1345, 1346 [3d Dept 2011]), the court reminded that:
"[A]n injury is compensable only if it arises out of and in the course of employment (see Workers' Compensation Law § 10 [1]). 'Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break'" (Matter of Smith v City of Rochester, 255 AD2d 863 [1998] [citation omitted]; accord Matter of Baxter v T.G. Peppe, Inc., 81 AD3d 1109, 1110 [2011]."
Defendant offers no credible evidence to contradict claimant's deposition testimony which shows that claimant was free to take her lunch break when and where she chose. The uncontradicted record shows that claimant's injury occurred outside of the scope of her employment, and that the defendant exercised no authority over claimant during her lunch break. Claimant "had discretion regarding the timing and location of [her] lunchtime break and [her] employer did not derive any benefit from [her] decision to take [her] lunch break when [she] did or otherwise retain authority or control over [her] during that time" (Baxter, 81 AD3d at 1110).
Defendant's proposed defense asserting that the exclusive remedy provided by the Workers' Compensation Law bars recovery by the claimant lacks merit and the defendant's motion to add that defense to its answer is denied.
Next, that portion of defendant's motion to dismiss, which alleges that the Court lacks subject matter jurisdiction because the claim fails to adequately state claimant's injuries, is denied.
Court of Claims Act § 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
The standard of review in assessing whether a claim complies with section 11 (b) as to adequately stating the nature of the claim is well-settled:
"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of State of New York, 78 AD2d 767, 768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]).
The accident occurred on September 15, 2009. The Notice of Intention served on defendant on November 4, 2009 stated that claimant suffered "multiple fractures of right wrist/forearm, right distal radius fracture." The claim served on September 29, 2010 alleges that claimant suffered severe and permanent injuries to "her right wrist."
The claim adequately complies with the pleading requirements of section 11 (b) of the Court of Claims Act.
Claimant's cross-motion requests permission to amend her claim to specifically allege that the Workers' Compensation Law's exclusive remedy is not applicable to the claim. While the claim did not specifically allege that the workers' compensation exclusive remedy was inapplicable to the claim, the claim stated, at paragraph 5, that at the time of the accident, "claimant was on her lunch break." Further, defendant has been aware, for between 4½ years and 7½ years, that claimant contends that the workers' compensation defense is inapplicable to her claim.
Defendant has not suggested, much less shown, that the proposed amendment would cause it prejudice and, as set forth above, the amendment, asserting that the workers' compensation exclusive remedy is inapplicable to the claim, is meritorious. Claimant's cross-motion to amend the claim, to specifically allege that the workers' compensation exclusive remedy is not applicable to the claim, is granted.
Claimant is directed to serve and file her amended claim via regular mail within 45 days of the filing of this Decision and Order.
February 21, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed July 22, 2016; 2. Affirmation of Daniel S. Hallak, dated July 21, 2016, and attached exhibits; 3. Claimant's Notice of Cross-Motion, filed November 4, 2016; 4. Affirmation of Steven D. Rhoads, dated November 1, 2016, and attached exhibits; 5. Reply Affirmation of Daniel S. Hallak, dated November 29, 2016; 6. Reply Affirmation of Steven D. Rhoads, dated December 13, 2016.