Download MEDINOSKY v. THE STATE OF NEW YORK, #2003-019

MEDINOSKY v. THE STATE OF NEW YORK, #2003-019-535, Claim No. NONE,
Motion No. M-66291
Synopsis
Claimants' motion for leave to file a late claim alleging labor law causes of action arising
injury resulting from rolling heavy steel structure down an earth embankment is denied.
Case Information
UID:
2003-019-535
Claimant(s):
MICHAEL W. MEDINOSKY and BARBARA A. MEDINOSKY
Claimant short name:
MEDINOSKY
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
NONE
Motion number(s):
M-66291
Cross-motion number(s):
Judge:
FERRIS D. LEBOUS
Claimant’s attorney:
LEVENE, GOULDIN & THOMPSON, LLP
BY:
Philip C. Johnson, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY:
Mlynarski & Cawley, P.C.
Theodore J. Mlynarski, Jr., Esq., of counsel
Defendant’s attorney:
Third-party defendant’s attorney:
Signature date:
April 7, 2003
City:
Binghamton
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
Claimants move for permission to file a late claim pursuant to Court of Claims Act
(hereinafter "CCA") 10 (6) containing causes of action based upon common-law negligence and
Labor Law 200, 240 (1) and 241 (6). The State of New York (hereinafter "State") opposes the
motion.
The Court has considered the following papers in connection with this motion:
1.
Motion for Leave to File a Late Claim, Motion No. M-66291, dated
January 6, 2002 [sic], and filed January 9, 2003.
2.
Affidavit of Michael W. Medinosky, in support of motion, sworn to
December 30, 2002.
3.
Affidavit of Philip C. Johnson, Esq., in support of motion, sworn to
January 6, 2003, with attached exhibit.
4.
Proposed Claim, dated December 20, 2002.
5.
Claimants’ Memorandum of Law, in support of motion, undated.
6.
Affirmation of Theodore J. Mlynarski, Jr., Esq., in opposition to motion,
dated February 27, 2003, and filed March 3, 2003.
7.
Affidavit of Daniel W. Ryan, in opposition to motion, sworn to February
27, 2003, with attached exhibits.
8.
Memorandum of Law in Opposition to Claimants’ Late Filing Motion,
dated February 27, 2003.
9.
Claimants’ Supplemental Memorandum of Law, dated March 24, 2003.
On March 1, 2002 Claimant1 was working on a project constructing a bridge from State
Route 17 into the Village of Owego, Tioga County, New York. The State is the owner of the
bridge and hired Fahs-Rolston Paving Corporation (hereinafter "Fahs-Rolston") as the general
contractor for the project. Fahs-Rolston hired Marathon Iron Works (hereinafter "Marathon") as
a subcontractor for certain steel work on the project. Claimant was employed as a steelworker
by Marathon at the time of this accident.
According to Claimant, his primary responsibility at the job site was to assist in the
assembly of caissons using pre-fabricated coiled steel. Claimant estimates one assembled
caisson measured 40 feet long and 30 inches in diameter and weighed about 2000 pounds. After
assembly the assembled caissons were stored in a designated area approximately forty feet from
their work area. Claimant avers that on some occasions the assembled caissons were moved by
crane to the storage area and on other occasions the steelworkers would manually roll them to the
storage area. Claimant describes the storage area as being located "downgrade from where the
pieces were assembled..." and that the steelworkers "pushed them downhill along an earthen
embankment to the storage area." (Claimant's Affidavit, ¶ 11). Claimant avers that on the date
of this accident one of the assembled caissons was ready to be moved to the storage area but a
crane was not available, so he and some "[c]o-workers began to manually roll the steel frame
down the earthen embankment to the storage area." (Claimant's Affidavit, ¶ 13). Claimant
describes the next series of events as follows:
1
The term "Claimant" will refer solely to Michael W. Medinosky inasmuch as the claim of Barbara A. Medinosky is
derivative in nature.
[a]s it was being rolled [sic] the hill, my glove was snagged by a wire which was holding the two
steel coil sections together, and I was propelled up and over the steel frame work as it continued
to move downgrade. My body was catapulted to the ground and unit [sic] then rolled over my
left hand and arm, and my head and shoulders became wedged between it and the ground.
(Claimant's Affidavit, ¶ 14). As a result of the foregoing, Claimant suffered severe injuries to
his left hand, together with injuries to his face, neck and shoulder.
As a threshold issue, the Court notes that it has jurisdiction to review and determine this
motion since it was filed within three years from the date of accrual which is the comparable
time period for bringing negligence actions against a citizen of the state. (CPLR 214; CCA 10
[6]).
The factors that the Court must consider in determining a properly framed CCA 10 (6)
motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances
underlying the claim,
4. the claim appears to be meritorious,
5. 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
6. the claimant has any other available remedy.
(1). Merit
The issue of whether the proposed claim appears meritorious has been characterized as
the most decisive component in determining a motion under CCA 10 (6), since it would be futile
to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92
Misc 2d 1, 10). In order to establish a meritorious claim, a claimant must establish that the
proposed claim is not patently groundless, frivolous, or legally defective and that there is
reasonable cause to believe that a valid claim exists. (Id. at 11). It is well-settled that "[f]acts
stated in a motion for leave to file a late claim against the State are deemed true for purpose of
motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88
Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The Court will address the factor of
merit individually with respect to each proposed cause of action, although the remaining 10 (6)
factors are discussed jointly.
a). Merit of Labor Law 200/Negligence cause of action
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 [citations omitted]."
(Miller v Wilmorite, Inc., 231 AD2d 843). That having been said, however, it is well-settled
that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress
of the work and inspecting the work product has been found insufficient to establish a cause of
action under Labor Law § 200 [citations omitted]." (Riccio v Shaker Pine, 262 AD2d 746, 748,
lv dismissed 93 NY2d 1042). In other words, with respect to owners, such as the State here, if
the alleged defect is in the contractor's methods, rather than the premises, an owner who has not
exercised any supervision or control over a contractor's operation cannot be liable for defects
arising therefrom. (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877).
Moreover, it is equally accepted that:
[m]ere retention of contractual inspection privileges...does not amount to control sufficient to
impose liability, and that where the injury is due to the method of work, Labor Law § 200 and
common law negligence claims must be dismissed in the absence of proof of the owner's actual
control, notwithstanding the existence of questions of fact regarding an owner's contractual right
of control [citations omitted].
(Brown v New York City Economic Dev. Corp., 234 AD2d 33; emphases in original).
Here, Claimant states employees of the Department of Transportation (hereinafter
"DOT") were present on the job site and, upon information and belief, that a state inspector was
at the job site daily to ensure the project was conforming to specifications and proceeding safely.
(Claimant's Affidavit, ¶ 17). Additionally, Claimant's counsel avers, upon information and
belief, and based upon his experience in litigating similar cases, that State employees would have
been on site on a daily basis ensuring all contractors were adhering to project specifications and
safety measures. (Affirmation of Philip C. Johnson, Esq., ¶ 6).
Claimant conceded at oral argument that the State did not direct the methods of
Claimant's duties, but argues that the State's presumed retention of contractual authority to stop
unsafe practices is sufficient to create at least the appearance of merit. It is well-settled that
general conclusory allegations regarding the State's control, at a State-owned project, of the
construction site are insufficient to support a motion to late file. (Beeman v The Olympic
Regional Development Auth., et al., Ct Cl, July 18, 2000, Bell, J., Claim No. None, Motion No.
M-61629 [UID No. 2000-007-040] conclusory contention regarding extent of defendant's control
insufficient on motion to late file; Floyd v State of New York, Ct Cl., December 12, 2000,
O'Rourke, J., Claim No. 102147, Motion No. M-62203, Cross-Motion No. CM-62302 [UID No.
2000-017-608] general allegation that State inspectors were present at the work site found
insufficient), with few exceptions. (Biggs v State of New York, et al., June 5, 2001, Fitzpatrick,
J., Claim No. None, Motion No. M-62319 [UID No. 2001-018-088] where specific allegation of
daily presence on job site with supervision and control that was not denied by the State was
found sufficient on late filing motion).2
Here, Claimant has not offered any proof to establish that the State exercised any
supervision or control over Marathon's operation, namely the method of moving the assembled
caissons. Stated another way, there is absolutely no proof indicating that any State employee
instructed Claimant on how to transport assembled caissons. As such, Claimant's reliance on
Freitas v New York City Tr. Auth., 249 AD2d 184, is misplaced since the factual allegations of
this Claim do not rise to the level of proof referenced in Freitas. Accordingly, this Court finds
2
Unreported decisions from the Court of Claims are available via the Internet at
http://www.nyscourtofclaims.state.ny.us/decision.htm
that the proposed claim does not set forth a meritorious cause of action based upon common-law
negligence and Labor Law 200.
b). Merit of Labor Law 240 (1) proposed cause of action
It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the
exceptionally dangerous conditions posed by elevation differentials at work sites...for workers
laboring under unique gravity-related hazards [citation omitted]." (Misseritti v Mark IV Constr.
Co., 86 NY2d 487, 491, rearg denied 87 NY2d 969). At trial a claimant must show that Labor
Law 240 (1) was violated and that the violation was a proximate cause of the resulting injuries. 3
(Gordon v Eastern Ry. Supply, 82 NY2d 555).
Claimant asserts that he has a valid 240 (1) cause of action arguing that "[t]he proposed
claim reflects that claimant was exposed to the risk of being injured, due to an object falling from
an elevated work area as a result of the absence of an appropriate safety device such as a crane
[citation omitted]." (Claimant's Memorandum of Law, p 6; emphasis added). In opposition,
the State argues that 240 (1) is inapplicable because there has been "no fall whatsoever, either of
a workman or of an object." (State's Memorandum of Law, p 6). In support of its position, the
State has submitted photographs of the accident location, as well as an Affidavit from the State's
project engineer.
With respect to the photographs, Claimant does not dispute that they accurately represent
the scene of the accident. To the naked eye, the topography appears relatively level with what
could, at most, be described as a slight slope. More specifically, the State's engineer describes
the slope as approximately six degrees. (Affidavit of Daniel W. Ryan, ¶ 5). In this Court's
view this incident cannot be viewed as involving an elevated work site or, in any manner,
involving a gravity-related risk associated with Labor Law 240 (1). Moreover, in Doty v
Eastman Kodak Co., 229 AD2d 961, lv dismissed 89 NY2d 855, the Court distinguished between
a "slide down an embankment" versus a slide down a ramp or runway and found a slide down an
embankment not to be the type of hazard for which 240 (1) was designed to protect. Here, there
is no allegation that the accident area was a constructed ramp or runway, but rather the area is
merely a gentle slope in the land.
Consequently, the Court finds that the proposed cause of action based on Labor Law 240
(1) does not appear meritorious.
c). Merit of proposed Labor Law 241 (6) cause of action
It is well-settled that Labor Law 241 (6) imposes a non-delegable duty on an owner of
property to comply with concrete specifications set forth in the Industrial Code. (Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In order to make out a prima facie cause of
action under Labor Law section 241 (6), a claimant must allege that the State violated a rule or
3
Labor Law 240 (1) states, in pertinent part, that all contractors and owners:
[s]hall 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.
regulation of the Commissioner of Labor that sets forth a specific standard of conduct, as
opposed to a general reiteration of common law principles. (Ross, 81 NY2d at 504-505).
Violation of the safety regulation must also be shown to be a proximate cause of the accident.
(Ares v State of New York, 80 NY2d 959, 960). Here, Claimant has pled the alleged violation of
only one Industrial Code provision, namely 12 NYCRR 23-1.23 entitled "Earth ramps and
runways" which has been deemed a concrete specification. (Demartino v CBS Auto Body &
Towing, 208 AD2d 886). As such, the Court will examine whether these factual allegations,
accepted as true, would fall within the purview of 12 NYCRR 23-1.23.
The State argues that 12 NYCRR 23-1.23 is inapplicable because this accident site was
not an earth ramp or runway or, in the alternative, assuming its applicability that none of the
fours paragraphs in said provisions are implicated by these allegations.
The Court agrees that these allegations do not support the premise that this accident
location can be construed as a ramp or a runway. Although not specifically defined in Part 23, a
ramp or a runway is referred to within other provisions as providing a "means of access to
working levels above or below ground...." (12 NYCRR 23-1.7 [f]; Supensky v State of New
York, 192 Misc 2d 233, 236). Here, the accident location can best be described as a plot of
ground, but under no reasonable interpretation did this location provide a means of access to
another working level above or below ground. As such, this Court finds that this earth
embankment does not equate to a ramp or a runway within the purview of 12 NYCRR 23-1.23.
Parenthetically, however, even if the Court were to accept Claimant's argument that this
location is a ramp or runway, the Court finds Industrial Code 23-1.23 inapplicable on these facts.
The Court will examine each of the four paragraphs of 12 NYCRR 23-1.23. Subdivision (a)
addresses the manner and material with which earth ramps and runways are constructed.4 There
is no allegation here that this "ramp or runway" was constructed with improper material or
maintained in an improper manner. As such, the Court finds that 12 NYCRR 23-1.23 (a) is
inapplicable to the facts at hand.
12 NYCRR 23-1.23 (b) states that "[e]arth ramps and runways shall have maximum
slopes of one in four (equivalent to 25 percent maximum grades)." Here, the State has
submitted an affidavit from the State engineer from this project who avers that the slope at the
accident location was not more than six degrees. (Affidavit of Daniel W. Ryan, ¶ 5). Claimant
has not disputed this representation. Accordingly, the Court finds 12 NYCRR 23-1.23 (b)
inapplicable to these facts.
12 NYCRR 23-1.23 (c) sets forth requirements for the construction of an earth ramp and
4
Subdivision (a) states:
Construction. Earth ramps and runways shall be constructed of suitable soil,
gravel, stone or similar embankment material. Such material shall be placed in
layers not exceeding three feet in depth and each such layer shall be properly
compacted except where an earth ramp or runway consists of undisturbed
material. Earth ramp and runway surfaces shall be maintained free from
potholes, soft spots or excessive uneveness [sic].
runway to be used by motor trucks. Here, there is no allegation that a motor truck was involved
in this accident or that there was any violation of the width and curbing regulations which
comprise this subdivision. Accordingly, the Court finds 12 NYCRR 23-1.23 (c) inapplicable to
this case.
12 NYCRR 23-1.23 (d) sets forth requirements for the construction of an earth ramp and
runway to be used by persons.5 Again, assuming this accident location to be such a ramp or
runway for purposes of this discussion, this subdivision sets forth three specific regulations for
the construction of such ramps and runways. First, is the regulation that the ramp and runway
should be at least 48 inches in width. Second, is the requirement that if the ramp and runway is
"more than four feet above the adjacent ground" then safety railings are required. Third, is the
requirement that the total rise of any ramp and runway should not exceed 12 feet unless the rise
is broken up by horizontal sections. There is absolutely no factual allegation by Claimant that
would implicate any of these requirements under subdivision (d). Accordingly, the Court finds
12 NYCRR 23-1.23 (d) inapplicable to this case.
Accordingly, the Court finds that the proposed claim relative to Labor Law 241 (6) and
12 NYCRR 23-1.23 does not appear meritorious.
2. Remaining Factors
Claimant candidly admits that the failure to comply with CCA 10 and 11 was due to his
own mistake of not consulting an attorney until November 4, 2002, unaware that there was a 90
day statutory period applicable to his claim. (Affidavit of Michael W. Medinosky, ¶ 21).
Despite Claimant's candor, ignorance of the law has been deemed an unacceptable excuse.
(Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs against
Claimant.
Notice of the essential facts, opportunity to investigate and lack of substantial prejudice
comprise the next three factors and may be considered together since they involve analogous
considerations. The State concedes that a DOT inspector was informed of this accident on the
date thereof and prepared a contemporaneous report. (Exhibit B to Affidavit of Daniel W.
Ryan). The State attempts to discount this notice by asserting that the injuries were believed to
be minor such that no investigation was conducted. In this Court's view, however, Claimant has
established that the State received notice of the essential facts of this accident, regardless of the
degree of injury, and, as such, could have conducted an investigation if it had so chosen. With
respect to the factor of prejudice, the State does not argue that the accident location has changed
or that any witnesses or documents are no longer available. Consequently, this Court finds that
5
Earth ramps and runways used by persons. Earth ramps and runways used by
persons with or without wheelbarrows, power buggies, hand carts or hand trucks
shall be at least 48 inches in width. Such ramps and runways more than four
feet above the adjacent ground, grade or equivalent level shall be provided with
safety railings constructed and installed in compliance with this Part (rule). The
total rise of any continuous ramp or runway used by persons with or without
wheelbarrows, power buggies, hand carts or hand trucks shall not exceed 12 feet
unless such rise is broken by a horizontal section at least four feet in length
every 50 feet.
these three factors weigh in Claimant's favor.
The last factor is whether Claimant has any other available remedy. Here, Claimant
concedes that he will be filing suit against the general contractor in Supreme Court. The Court
finds that this factor weighs against Claimant.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6),
the Court finds that with respect to the proposed common-law negligence, Labor Law 200, 240
(1), and 241 (6) causes of action that three of the six factors, including the all-important factor of
merit, weigh against Claimants' motion for permission to file a late claim pursuant to CCA 10
(6); and
In view of the foregoing, IT IS ORDERED that Claimants' motion for permission to file a
late claim, Motion No. M-66291, is DENIED.
April 7, 2003
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of Claims