New York State Court of Claims

New York State Court of Claims

LOVE v. NEW YORK STATE THRUWAY AUTH., #2000-012-003, Claim No. None, Motion No. M-60483


Synopsis


Claimant, who had timely served a notice of intention to file a claim on the State of New York, was granted permission to file a late claim against the New York State Thruway Authority.

Case Information

UID:
2000-012-003
Claimant(s):
SHERYL LOVE
Claimant short name:
LOVE
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-60483
Cross-motion number(s):

Judge:
John P. Lane
Claimant's attorney:
LIPSITZ, GREEN, FAHRINGER, ROLL,
SALISBURY & CAMBRIA LLPBy: Sharon M. Heim, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: Gregory P. MillerAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 28, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The following papers were read and considered on claimant's application for permission to serve a late Notice of Claim on the New York State Thruway Authority:

Notice of Motion, Affirmation and Exhibits Annexed 1

Claimant alleges that she was injured on June 8, 1999, while working as a bridge painter on a "state bridge over Indian Church Road in the Town of West Seneca, New York." After retaining counsel, she served a notice of intention to file a claim upon the State of New York; however, counsel was subsequently advised that the contract for the bridge painting was not between her employer and the State, as she had thought, but between her employer and the New York State Thruway Authority. Accordingly, the instant motion ensued.

Although claimant styled this motion as requesting permission to serve a late "notice of claim," there is no document so titled in Court of Claims practice, and the court will construe this motion as requesting permission to serve (and file) a late claim against the Thruway Authority.

Despite claimant's failure to have demonstrated a reasonable excuse for failing to ascertain the proper party defendant, it is clear that the Thruway Authority had timely notice of the facts constituting the claim (by virtue of the timely service of the notice of intention upon its counsel, the Attorney General), as well as the opportunity to investigate, and that no prejudice would accrue from an order allowing late filing. It is also clear from the submitted papers that claimant has made a sufficient appearance of merit, at this stage of the litigation, so that she should be allowed to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1), regardless of her partial alternate remedy in the form of workers' compensation benefits.

Defendant did not submit papers in opposition to this motion and the Assistant Attorney General who appeared at the calendar call advised the court that the defendant did not oppose the motion.

Nevertheless, the proposed "notice of claim" that was submitted as an exhibit to this motion is not in proper form as it does not contain a demand for relief.

Accordingly, the motion is granted to the extent that claimant shall prepare a claim, identical to the proposed notice of claim with the addition of a demand for relief and without the words "In the Matter of the Claim of" in the caption, and shall serve (by a method authorized by the Court of Claims Act) and file said claim within 30 days of the file-stamped date of this order.


February 28, 2000
Buffalo, New York

HON. JOHN P. LANE
Judge of the Court of Claims