Document VGdywpjbKN0xRkp3MvQQgX3Jo

FILE NAME Brakes BRK DATE 1944 DOC BRK130 DOCUMENT DESCRIPTION Legal - Case Report - Converse vs. N REPORTS OF SELECTED H CASES DECIDED STATE OF NEW YORK CHaSNH. COURT OF APPEALS AND THE APPELLATE DIVISION Gained OF THE SUPREME COURT E. DIMOCK STATE REPORTE~ VOLUME 181 MISCELLANEOUS REPORTS ALBANY WILLIAMS PRESS INO 1944 181 CONVERSE v State of New York 113 Miso 118 Court of Claims April 1943 Assuming then that there has been no relaxation of the tried and proven concepts of justice this case presents no difficulty A keen and calculating tenant seeks to convert an agree- ment to share the expense of repairs and improvements which for anything that appears it was his duty to make into a demand for increased rent The inexperienced and bewildered danghters of an incapacitated landlord err upon the advice of a for- givably inexperienced and bewildered member of the personnel OE of a hastily constituted office of the Office of Price Adminis- ee tration Ee TEAS Reduced to essentials this case involves an agreement by the plaintiff to pay 5 per month to defray a part of the cost OS of repairs and decorations which it was his duty to minke a Soe simple and entirely lawful contract It did not constitute a raise of rent nor a cover therefor nor in any sense an evasion ore of the law The attempted refund is not inconsistent with this view When the astute tenant disavowed his agreement and e ns sought to convert it into an excessive exaction of rent the defendants were freed of their obligation to make the improve- x ments and a refund of the additional payments was the just 27 Course Let judgment enter in favor of the defendants dismissing the complaint with costs vice are eer I to . of 10 : to blar lica not MAURICE M. CONVERSE Claimant v STATE OF Defendant Claim No. 27212. NEW YORK Court of Claims April 16 1943 Statfeile notice of intention to file claim 1 claimant filed notice of inten- tion to file claim against State for damages sustained while employee of State alleging that State so operated place of employment that he inhaled dust gasos fumes vapors and impurities in atmosphero and thereby sustained injuries to his health including asbestosis claimant thereafter filed claim against State General's motion to dismiss claim on ground of nonjurisdiction of court that action was not timely commenced and that mole remedy of claimant is under article A of Workmen's Compensation Law relating to silicosis and other dust diseases - denied 2 claimant nowhere specifies silicosis or other dust diseases language of notice of intention and claim sufficiently broad to permit proof of claimant's inhaling noxious fumes and medical testimony as to effect thoroof on claimant 3 ninety and year Statutes of Limitation inapplicable since based on premise that claim- ant is suffering from silicosis or other dust disease 1 filing of notice of intention timely under section 10 of Court of Claims Act where within ninety days from termination of claimant's employment 1 Claimant filed his notice of intention to file a claim against the State for damages sustained while he was an employee of the State Highway Department 114 CONVERSE v STATE OF NEW YORK Court of Claims April 1943 Vol 181 in the lining department of a garage alleging that the State operated the place of employment in violation of the Labor Law and the rules of the Industrial Board relating to the removal of dust gases fumes vapor and and that because of said violation large quantities of the summe wimepruerictrieeasted in and not removed from the atmosphere of the room and that he inhaled the same and thereby unstained injuries to his health including asbestosis and injuries to his respiratory and cardiac systems Claimant thereafter filed a claim against the State in which he alleged that his injuries con- stituted only permanent partial disability and that he has no romedy under article A of the Workmen's Compensation Law The motion of the AttorneyGeneral to dismiss the claim on the ground that the Court of Claims has not jurisdiction of the subject matter of the action that the action was not commenced within the time limited therefor and that the sole remedy of claimant is under article A of the Workmen's Compensation Law relating to " Silicosis And Other Dust Diseases is denied 2. Nowhere in the claim does claimant specify silicosis or any other dust discase Reading the allegations of the notice of intention along with those of the claim proper the language is sufficiently broad in scope to permit proof to be offered that claimant inhaled noxious fumes and vapor and to admit medical testimony as to the effect of those upon the organs of claimant's body Consequently plaintiff's remedy is not exclusively under article A of the Workmen's Compensation Law 8. Neither the ninety limitation under section 60 of the Workman's Com- pensation Law nor the year Statute of Limitations on the ground that claimant's cause of action is one for violation of a statutory duty advanced as bars by the Attorney and based on the premise that claimant is suffering from silicosis or other dust disease is applicable Upon the trial claimant may establish other or different injuries and if he does the Statutes of Limitation invoked would not apply 4. The notice of intention was filed in time under section 10 of the Court of Claims Act requiring by subdivision 3 thereof such filing within ninety days of the accrual of the claim where filed within ninety days from the termination - of claimant's employment MOTION by State to dismiss claim against it Nathaniel L. Goldstein Attorney Hurold S. Coyne of counsel for defendant William L. Clay for claimant RYAN J. On December 13 1941 claimant filed his notice of intention to file a claim against the State of New York for damages sustained while he was an employee of the State Highway Department at Pittsford N. Y. " from sometime during the year 1925 until October 26 1941 " during which time he worked in the lining department of the garage there maintained by the said State Department The notice of inton- tion alleged that the State of New York so operated said place of employment as to violate the provisions of the Labor Law and the rules of the Industrial Board " relating to the removal of dust gases fumes and vapors and that because of said viola- Miso 113 tion large quant ties were created ix from the atmos oy worked und i inhalation " susi : i .. -. fi <- em = me: B= = including asbesto system and was On May 21 1 likewise charges duty in respect to fans 2 failing clothing to be w safo and sanitar 4 failing to prov therein It is all plaintiff sustaine thereof and that natural consequer and were not acr or diseases as we the purview of th of New York 7 m. plained of are po Ri; constitute and co ability but do not permanent partial me has a right to un F partially disabled A of the Work pensation before entitled to maintai y. zr on The Attorney- = on the ground 1 tl B.. matter of the acti Fe. within the time lim the claimant is une , e It the Attorne % is covered by artic . which ho refers to * to that statute Th :- Dust Diseases " specify silicosis or intention docs refer Lista gases fume : 14 ' ' Vol 181 te operated Tales of the vapor and i the same m and that 11 including mant there- ajuries conmedy under e Attorneyis has not as not comof claimant ao " Silicosis other dust ith those of .ermit proof nd to admit nant's body A of the men's Corn- round that y advanced cluimont is on the trial The Statutes the Court of . ninety days termination _ S. Coyne his notice . York for the State stime durwhich time rage there e of inten- suid place or Law and removal of said viola- is AeED,rs 5 oe 2e43S ot aa + : CONVERSE v STATE OF NEW YORK 115 Misc 113 Court of Claima April 1943 tion large quantities of dust gases fumes vapors and impuri- ties were created generated and released and were not removed from the atmosphere of the workroom in which the claimant worked and that he breathed them and because of such " inhalation sustained serious and severe ^finjuriesto his health including asbestosis and injuries to his respiratory and cardiac system and was otherwise injured On May 21 1942 claimant filed his claim This pleading likewise charges the State with the violation of a statutory duty in respect to 1 failing to equip its machinery with exhaust fans 2 failing to provide claimant with special guards or clothing to be worn upon the person 3 failing to provide safe and sanitary conditions in the place of employment and 4 failing to provide proper and sufficient means of ventilation therein It is alleged that " on account of such violation this plaintiff sustained injuries to his health and aggravation thereof and that said injuries flowed directly from and as a natural consequence of the said acts of the defendant * and were not accidental in nature and were not such injuries or diseases as were at the time of the happening thereof within the purview of the Workmen's Compensation Act of the State of New York It is further alleged " that the injuries com- plained of are permanent and incurable in their nature and constitute and consist of a permanent impairment of working ability but do not constitute total disability but only permanent partial disability that the claimant herein has a right to maintain this proceeding in that he being but partially disabled and being afforded no remedy under Article A of the Workmen's Compensation Law to receive com- pensation before the Workmen's Compensation Bureau is entitled to maintain an action therefor The Attorney now moves to dismiss claimant's claim on the ground 1 that this court lacks jurisdiction of the subject matter of the action 2 that the action was not commenced within the time limited therefor and 3 that the solo remedy of the claimant is under the Workmen's Compensation Law It is the General's theory that claimant's disability is covered by article A of the Workmen's Compensation Lnw which he refers to as " the occupational disease amendment " to that statute This article is entitled Silicosis And Other Dust Diseases " But nowhere in claimant's claim does he specify silicosis or any other dust disease True the notice of intention does refer to dust and to asbestosis but it also lists " gases fumes vapors and impurities " as causal agents NUVCC NUVCC wes. URS OE 116 CONVERSE v STATE OF NEW YORK Court of Claims April 1943 Vol 181 and cardiac systems If of injuries to claimant's respiratory notice of intention along we should read the allegations of the with those of the claim proper the language of the pleadings is still sufficiently broad in scope to permit proof to be offered that claimant inhaled noxious fumes and vapors tahnedotrogaandsmiotf medical testimony as to the effect of those upon claimant's body claimant should not be deprived of his day We believe that of Del Busto v Dupont de Nemours in court by the authority that case was argued and & Co. 259 App Div 1070 because dust briefed on the assumption that it involved a silicosis or Co. disease nor by the authority of Scherini v Titanium Alloy because in that case there was nowhere an 286 N. Y. 531 had been disabled partially or totally allegation that plaintiff the validity of and the Court of Appeals did not pass upon of article A If as suggested by the Attorney- the provisions Division Fourth Department in General the Appellate and Lomb Optical Co. 263 App Div 1065 Schwartz v Bausch of article A it must recently passed upon the constitutionality decision in that citation be remembered that the memorandum refers to the suit as a " silicosis action " In asserting that claimant's action was not commenced within time limited therefor the Attorney first invokes the limitation set out in chapter 548 of the Laws the ninety in effect April 16 1940 which amended section 66 of of 1940 Law If that limitation applied the Workmen's Compensation not filed by July 15 1940. Secondly the it would bar claims that since claimant's theory is that Attorney argues for the violation of a statutory duty his cause of action is one and that such limitation ran the limitation thereon is six years because on September 1 1935 and expired on August 31 1941 In both arguments the premise silicosis became compensable silicosis or other dust discase is that claimant is suffering from establish other or different But upon the trial claimant may of Limitation invoked injuries and if he does the Statutes would not apply notice of intention claimant's employment According to his 1941. According to the State's records terminated October 26 it terminated Octo- asserted in the General's brief of notice of intention ber 30 1941. Taking either date the filing of section December 13 1941 is well within the requirements on 10 of the Court of Claims Act L. 1939 ch 860 The motion is denied Submit order accordingly COMMISSIONE COMISIONE Misc 117 COMMISSIONERS COMMISSIONERS COMMISSIONERS A Supreme Coc Trial - preferr Practice gives Sta is original one or ance Fund entitle action which accr men's Compensati 1. It was plaiul Practice to give ti brought by or niger this without regar assignment More possessions of th deprived except by is manifested in s in its predecessor 2. Accordingly ' Fund as statutory tion Law of a cau employment was i accepted an award action against the Commissioners for of Civil Practice officers of the Sta certain MOTION by pl William F. ( Herman M. EVER J. Th the State Insu provisions of > Practice on the of officers of the By this actio and suc as stai Anthony A. Ga ~ genco of the de and on the busi its liability to i pensation Law Insurance Gar