By this motion, opposed by the defendant, Hart Hotels, Inc. seeks permission to
file a late claim based upon the alleged improper classification of its
employees in determining the premium for workers' compensation
According to claimant, certain of its clerical personnel who were working
separately from the "hands-on operation of Hart [Hotels'] business" were placed
by the State Insurance Fund in the "more costly classification, i.e. hotel" (cl
mot, affid, ¶¶2 & 3). The proposed claim comprehends $7,123 in
overpaid premiums for 1993 and 1994.
In setting workers' compensation premiums, a company's employees must be
assigned to one of the job classifications established by the New York State
Compensation Insurance Rating Board, which reflect the overall general risk
experience for a particular job. 
determining the ultimate premium to be billed, the State Fund, like any insurer,
takes into account factors from the individual company, such as its accident
history and the existence and nature of safety programs.
Claimant references two provisions from its contract of insurance with the
[T]hese classifications were assigned based on an estimate of exposures you
would have during the policy period. If your actual exposures are not properly
described by those classifications, we will assign proper classifications, rates
and premium basis by endorsement to this policy.
The premium rates applied on your policy may be modified to be in excess of or
less than the Rating Board rates. Modification of Rating Board rates will be
determined by the State Insurance Fund based on an underwriting appraisal of
your business operations as a risk.
[Proposed claim, ¶¶ 5 and 6]
Section 10.6 of the Court of Claims Act enumerates six factors to be weighed in
determining whether to grant permission to file a late claim. But in any event,
the underlying statute of limitations from article 2 of the CPLR must be
satisfied; namely, six years for an action sounding in contract.
This matter turns on when the cause of action accrued. From one vantage, Hart's
claim accrued in 1994. Defendant contends the claimant's cause of action accrued
on May 17, 1994, the last date any payment was made by Hart Hotels for the
policy period in question. Defendant indicates that the policy of compensation
insurance was canceled June 24, 1994 (Def affirm, §12). Even using this
later date, claimant's motion is still untimely - albeit by a few days, having
been filed on June 26, 2000.
However, the defendant also acknowledges the alternative view of accrual:
inasmuch as claimant's "Administrative remedies have ‘yet to be
concluded', it is submitted that the instant action is premature at best"(¶
10 of def affirm, quoting ¶6 of cl affid).
In sum, under these two theories of accrual, it is either too soon or too late
for the granting of permission to file a late claim. Accordingly, IT IS ORDERED
that the motion of Hart Hotels, Inc. (M-61931) be denied.