Yarusso v. State
| Decision Date | 21 December 2012 |
| Docket Number | Motion No. M-82083,# 2012-049-067 |
| Parties | PETER YARUSSO v. THE STATE OF NEW YORK |
| Court | New York Court of Claims |
Claimant's late claim application alleging negligence and violations of common law negligence, Labor Law §§ 200 and 241 (6), granted in part.
Case information
UID: 2012-049-067
Claimant(s): PETER YARUSSO
Claimant short name: YARUSSO
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-82083
Cross-motion number(s)
Judge: David A. Weinstein
Davidson & Cohen, P.C
Claimant's attorney:
By: Bruce E. Cohen, Esq
Eric T. Schneiderman, NYS Attorney General
Defendant's attorney:
By: Edward J. Curtis, Assistant Attorney
General
Third-party defendant's
attorney:
Signature date: December 21, 2012
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Claimant Peter Yarusso moves this Court for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed verified claim alleges causes of action for common law negligence and violations of Labor Law §§ 200 and 241 (6), based upon injuries Yarusso sustained on May 17, 2012 when he "slipped/tripped and fell on construction debris on the ground after descending shanty/trailer steps" on a construction site during the course of his employment with CCA Civil Halmar for a George Washington Bridge renovation/construction project (the "Project") (Proposed Claim ¶ 3).
In addition to the proposed claim, Yarusso submits his own affidavit, an affirmation of counsel, photographs of the area where the accident occurred, a copy of a notice of claim titled Yarusso v The Port Authority of New York and New Jersey, and a letter from the general counsel's office for the Port Authority stating that it does not own, operate or maintain the location of the incident.
The application to file a late claim was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10 (6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant states that he initially believed that the yard where the accident occurred was owned by the Port Authority. As a result, on August 2, 2012, a notice of claim was served on that entity. Shortly thereafter, claimant received correspondence from the Port Authority, dated August 14, 2012, that disavowed ownership and operation of that yard. Claimant then learned on August 20, 2012 that his employer had been hired by the New York State Department of Transportation for the Project, and that New York State owned the yard. Claimant's confusion as to which entity to sue, however, is generally not a valid excuse for purposes of section 10 (6) relief (see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]). As a result, this factor weighs marginally against claimant's application.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant argues that given the brief period of time since the expiration of the 90-day filing and serving deadline and the making of this motion, defendant would not be prejudiced. Claimant adds that the accident occurred on a State-owned project, and was reported by the contractor to State personnel (see Matter of Smith v State of New York, 63 AD3d 1524, 1525 [4th Dept 2009] []). Defendant makes no argument with regard to these three factors, and given claimant's brief delay of less than one month after the statutory 90-day period ran, I find that these factors weigh in claimant's favor.
The appearance of merit of a proposed claim is evaluated under the standard set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A] [Ct Cl 2006]).
Yarusso's affidavit states that his injury occurred within a construction yard his company used to store its vehicles and equipment. At about 9:40 p.m. on May 17, 2012, as he was descending from a shanty/trailer that his company had in the yard, he "slipped and tripped and fell on construction debris consisting of nuts, bolts, pieces of metal, wooden pieces and construction scrap" that were accumulated on the ground at the foot of the trailer steps (Yarusso Aff. at 1-2). According to Yarusso, the location was poorly lighted and his effort to navigate his way through the area was to no avail due to the amount of debris (id. at 2).
Claimant contends that these allegations set forth meritorious claims under Labor Law §§ 200 and 241 (6), as well as for common law negligence. I address these causes of action in turn below.
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; see also Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011] []). Under the statute, liability attaches to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (see Lombardi v Stout, 80 NY2d 290, 294-295 [1992]). As alleged here, when an accident arises from a dangerous premises condition, claimant must demonstrate that defendant had actual or constructive knowledge of the unsafe condition that caused the accident (see Murphy v Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]). Similarly, a landowner will not be liable in common law negligence for a hazard on its property unless it created the unsafe condition (see Di Sanza v City of New York, 11 NY3d 766, 767 [2008]), or had actual or constructive notice thereof (id.; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).
Claimant's submissions make no showing in regard to these elements. They contain no allegation at all as to the State's role in the project or knowledge of the alleged dangerous condition, nor do they provide any indication as to how long the alleged hazard existed, from which constructive notice might be inferred (cf. Rickard v State of New York, UID No. 2012-037-009 [Ct Cl, Moriarty, J., Feb. 9, 2012] [section 200 and common law negligence claim had appearance of merit when claimant "alleges that there was a dangerous condition at the work site . . . which existed for a considerable period of time prior to his accident and that Defendant had notice of the defective condition and an opportunity to correct it"]). Indeed, claimant's own affidavit indicates that he was unaware that the State played any role in the project at all until after he was injured (see Yarusso Aff. at 2 [] [emphasis added]). In the absence of anything in claimant's submission that connects the State to the condition he alleges to have caused his injury, I find that claimant's section 200 and negligence claims lack an appearance of merit (see Matter of Allen v State of New York, 2002 WL 31940720 [Ct Cl 2002], affd 4 AD3d 835 [4th Dept 2004] []; accord Gonzalez v State of New York, UID No. 2012-037-007 [Ct Cl, Moriarty, J., Feb. 6, 2012]).
Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is...
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