New York State Court of Claims

New York State Court of Claims

LIMA v. THE STATE OF NEW YORK, #2000-014-535, , Motion No. M-62196


Synopsis


Application for permission to file a late claim is granted.

Case Information

UID:
2000-014-535
Claimant(s):
SEBASTIAO LIMA
Claimant short name:
LIMA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-62196
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Davidson & Cohen, P.C.By: Ira Cooper
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on claimant's application for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion and Exhibits annexed; Affirmation in Opposition; Reply Affirmation.


The claimant seeks permission to file a late claim alleging violations of §§ 200, 240 and 241(6) of the Labor Law, in connection with an incident which occurred on February 18, 2000 at a construction site for which, it is alleged, the defendant is responsible.

Although the 90-day period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(3), this application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

The delay in filing the claim is not excusable. According to the claimant, who was employed by the general contractor, he was initially unaware of the defendant's involvement in the construction project.

In the absence of specific factual support of the State's apparent opposition with respect to the statutory factors of notice, opportunity to investigate, and prejudice caused by the delay, those factors are presumed to weigh in the claimant's favor. See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.

While the defendant's status with respect to the site is not specifically alleged in the proposed claim, the allegations in the proposed claim can only be understood to be based upon the allegation that the defendant "controlled and supervised" the site, as alleged in the claimant's Affidavit in Support (Exhibit B, ¶3). The proposed claim, which is supported by an affidavit by the claimant, otherwise appears to be meritorious; it contains all of the information set forth in Court of Claims Act §11(b).

It is not disputed by the claimant that he has another available remedy, under the provisions of the Workers Compensation Law.

Having considered the relevant statutory factors, Bay Terrace, supra, the balance of factors weigh in claimant's favor. It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim in the form annexed to claimant's submission as Exhibit D, except that it shall be denominated a "Claim" and it shall include specific allegations of the defendant's status with respect to the site, in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Order.


November 27, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims