New York State Court of Claims

New York State Court of Claims



Claimants have made an application for an order granting permission to late file a claim pursuant to Court of Claims Act § 10(6). Motion denied, without prejudice.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
E. Stewart Jones, PLLC (W. Farley Jones, Esq., of counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Michael C. Rizzo, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
July 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants have made an application for an order granting permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was May 17, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of W. Farley

Jones, Esq., Affidavit of Randy C. Beeman,
Proposed Claim 1, 2, 3, 4

Affidavit in Opposition of Michael C.
Rizzo, Esq. 5

Claimant Randy C. Beeman[1] allegedly sustained injuries on November 8, 1999 while working on the Olympic bobsled track on Mount Van Hoevenberg, Town of North Elba, Essex County. Claimant was an employee of Concrete Solutions, Inc. and was assigned to assist in preparing a portion of the track for a cement pour on the morning of November 8. According to claimant, at approximately 8:00 a.m., he was working on an elevated part of the track and he fell as he attempted to step onto a ladder positioned against the outside wall of the track. Claimant was allegedly injured in the fall and claimants[2] now seek permission to late file a claim.

A threshold inquiry is whether the motion was made before an action asserting a like claim against a citizen would be barred by the Statute of Limitations (Court of Claims Act § 10[6]). The claim accrued on November 8, 1999 and a three-year Statute of Limitations governs. The motion is therefore timely and the statutory factors will be considered.

The factors weighed by the court on an application to late file include: (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available (Court of Claims Act § 10[6]). The court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any particular factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimants have failed to establish an acceptable excuse. Claimant states that he was initially concerned with seeking medical care for his condition. When asserting physical injuries as an excuse for not filing in a timely fashion, a claimant generally must submit medical evidence such as hospital records or a physician's affidavit to substantiate the nature and extent of the injuries (see, Cabral v State of New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613). No medical evidence was presented by claimants in support of the motion and, indeed, the nature of claimant's injuries are not set forth with specificity. To the extent claimants are attempting to assert their unfamiliarity with the law as an excuse, such an assertion does not constitute a sufficient excuse (see, e.g., Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753; Modern Transfer Co. v State of New York, 37 AD2d 756).

The related factors of notice, opportunity to investigate and substantial prejudice will be considered next. Claimants have failed to present any proof that defendants had notice of the accident. The individuals claimant states he notified were employees of Concrete Solutions, Inc. Although employees of defendants may have been present and may have received notice of the accident, no such evidence has been presented in the instant motion. Similarly, there is no evidence that defendants conducted an investigation and, in the absence of evidence of notice, the court cannot conclude that defendants had an opportunity to conduct an investigation. Without proof of notice and an opportunity to investigate, the court cannot reasonably find that the prejudice factor weighs in claimants' favor. Claimants have failed to establish the factors of notice, opportunity to investigate and lack of substantial prejudice.

The meritorious claim factor is particularly important because it would be an exercise in futility to permit a meritless claim to proceed (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). Surprisingly, claimants have not alleged in their proposed claim any causes of action premised upon the Labor Law. The papers presented therefore purport to proceed upon a theory of negligence. A common law negligence cause of action against the owner of premises where an injury occurred during a construction project must include proof that the owner had authority to control the work being performed on the premises (see, e.g., Soshinsky v Cornell Univ., 268 AD2d 947; Custer v Cortland Hous. Auth., 266 AD2d 619, 620, lv denied 94 NY2d 761). Here, the papers presented contain only conclusory contentions regarding the extent of defendants' control of the construction site. The court finds such contentions an insufficient basis upon which to find a meritorious claim.

Claimant has pursued a workers' compensation claim, which constitutes another available remedy (see, Matter of Lockwood v State of New York, 267 AD2d 832, 833).

Upon weighing and considering the factors set forth herein, the court is not convinced that it would be a proper exercise of discretion to grant the motion based upon the papers presented. The court is cognizant that many of the deficiencies noted herein may be addressed by additional proof and therefore the denial of the motion is without prejudice. The court is particularly concerned with claimants' failure to establish a meritorious claim, as well as their failure to adequately address the issues of notice, opportunity to investigate and substantial prejudice.

It is

ORDERED that claimants' motion is denied, without prejudice.

July 18, 2000
Plattsburgh, New York

Judge of the Court of Claims

All references herein to claimant are to Randy C. Beeman unless otherwise noted.
The relationship of claimant Mary C. Beeman to Randy C. Beeman is not set forth anywhere in the papers. While she presumably is Mr. Beeman's spouse, the court should not be left to making such presumptions. Moreover, the proposed claim fails to set forth any cause of action for loss of consortium or other derivative damages.