New York State Court of Claims

New York State Court of Claims

PADILLA v. STATE OF NEW YORK and STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, #2000-018-030, Claim No. NONE, Motion No. M-61468


Synopsis


Court denies claimant's application to file late claim.

Case Information

UID:
2000-018-030
Claimant(s):
HECTOR PADILLA The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
PADILLA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61468
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MEYERS, MEYERS & KELMACHTERBy: Glenn R. Meyers, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. Lawrence Dillon, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 3, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has reviewed and considered the following papers on claimant's application


for permission to file a late claim:


Notice of Motion..........................................................................................................1

Affirmation of Glenn R. Meyers, Esq., in support with all exhibits attached thereto...............................................................................................................2


Affirmation of G. Lawrence Dillon, Esq., Assistant Attorney General in

opposition.........................................................................................................3

Proposed claimant's counsel brings this motion seeking permission to file a late claim on behalf of his client. The proposed claimant apparently retained Mr. Meyers and/or his firm "‘subject to investigation' an Intention to File Claim" (Meyers Affirmation Page 2, second full paragraph) Since that time, Mr. Meyers has been unable to locate Mr. Padilla, the proposed claimant, and desires by this motion to preserve the rights of his client. The proposed claim which sets forth the proposed claimant's postoffice address, alleges that on December 2, 1999 while the proposed claimant was an inmate at Camp Georgetown he participated in a work release program with Norwich DPW Garage Carpenter Shop. On that date, the proposed claimant was injured when the glove on his right hand caught on the table miter saw-blade cutting his hand. The proposed claim asserts the negligence of the defendant in failing to properly train and supervise the proposed claimant and in failing to provide a safe work place and equipment. The proposed claim seeks one million dollars in damages.

Court of Claims Act §10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the state would be barred under article two of the CPLR. (Court of Claims Act §10(6).) Claimant's motion is timely. (Court of Claims Act §10(6); CPLR §214(5).)

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.) Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor, is whether the delay in filing the claim is excusable. Claimant's counsel asserts that the delay is excusable because it is inconsequential and non-prejudicial. The delay is partially due to an inability to locate the proposed claimant. There are no facts presented to indicate the details of the delay, i.e. when exactly did the proposed claimant retain Mr. Meyers, when is the last time there was contact with the proposed claimant, what efforts were made to locate him. As a result, the delay is not excusable and this factor weighs against the granting of the application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors weigh in favor of granting the application. Based upon the documentation submitted with Mr. Meyers' affirmation it is clear that the State had notice of the injury and investigated the incident at that time. Furthermore, there are written reports of the incident and apparently photographs were taken of the injury, so no prejudice would result if the application were granted based upon the submitted documentation.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. ( Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11).

The allegations assert negligence on the part of the State while the proposed claimant was working at the Norwich DPW Garage Carpenter Shop as part of a work release program. Defendant argues that the proposed claimant was engaged in employment at a municipal job site which was not owned, operated, supervised or otherwise managed by the State. (Dillon Affirmation ¶7) Defendant argues that an inmate in a work release program is an employee of a private employer and thus the State is not liable for improper training or supervision at the job site.

The application has not made clear exactly what program the proposed claimant was involved, since in Mr. Meyers' affirmation in support he asserts it was a "work program" required by the State as a condition of the proposed claimant's incarceration, yet in the proposed claim it refers to participation in a "work release program". (Meyers' Affirmation, first page, last paragraph; Exhibit A) Participation in the work release program is a privilege granted to an inmate whereby the inmate is permitted to leave the correctional facility for up to 14 hours per day to work or gain on-the-job training. [7 NYCRR §1900.3(f) and §1903.1(a)]

Clearly, an inmate who is working at the direction and in the custody of the State in a work program, is owed a duty by the State to provide not only reasonably safe machinery and equipment, but also to provide adequate warnings, instruction and supervision for the safe operation of the machinery and equipment. (See, Kandrach v State of New York, 188 AD2d 910) Assuming for the moment that the proposed claimant's work at the Norwich DPW garage was, as the defendant describes, for an independent municipal employer, does the State owe the inmate the same duty as part of the work release program?

An inmate in a work release program is in a different position than an inmate working in the correctional facility, or at the direction of the State, or an inmate in another temporary release program, i.e., community services program. (See, D'Argenio v Village of Homer, 202 AD2d 883, 884-885) By statute, an inmate participating in a work release program is deemed not an agent, employee or servant of the state while outside the premises of a correctional facility. (See, Correction Law §861) Instead, under participation in that program, the inmate is an employee of the private employer . (See, Gress v State of New York, 157 AD2d 479; D'Argenio v State of New York, Ct Cl, Margolis, J., filed May 31, 1995, claim number 81551, see also, Correction Law §178.) As a result, the legislature specifically extended the protection of the labor law statutes to an inmate in the work release program, whereas an inmate in a work program, under the direction and custody of the State, although also not considered an employee of the State, is not covered by the Labor Law protections. (See, Correction Law §858; Callahan v State of New York, 19 AD2d 437, aff'd 14 NY2d 665; D'Argenio v Village of Homer, supra at 884-885) Likewise although an inmate is not entitled to Workers' Compensation benefits for work performed at the prison, the inmate in the work release program may be entitled to such benefits. (Cf. Matter of Reid v New York State Department of Correctional Services, 54 AD2d 83) It follows then that where the inmate is in a work release program, employed by a private employer, not under the direction or control of the State, the State is not under a duty to provide a reasonably safe work place or to provide adequate warnings, instruction and supervision for the safe operation of the machinery and equipment. Furthermore, the State has no duty or obligation to inspect or ensure the safety of a temporary release program work site. (Gress v State of New York, supra at 479.)

Since it is impossible to tell from the documents submitted what role the State had in the proposed claimant's employment, the application fails to show that the proposed claim is not legally defective, nor does it establish reasonable cause to believe that a valid cause of action exists. This factor weighs against granting the application.

The final factor is whether the proposed claimant has any other available remedy. A factor which was not addressed by the moving papers. A review of the above cited case law, however, indicates the proposed claimant may have a cause of action against the Norwich DPW or may be entitled to Workers' Compensation. Accordingly, this factor must weigh against granting the application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES the application to permit the late filing and serving of the claim without prejudice.


August 3, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims