New York State Court of Claims

New York State Court of Claims



Claimant moved for permission to late file a claim arising from an accident at Whiteface Mountain Ski Center in which claimant was struck by the gondola lift. Motion granted.

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:
Hopkins & Higgins (Louis H. Higgins, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Frederick H. McGown, III, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
January 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was January 17, 2001. The following papers were read and considered by the court:

Notice of Motion, Affidavit of Louis H. Higgins,
Esq., Proposed Claim, Annexed Exhibits 1, 2, 3, 4

Affirmation in Opposition of Frederick H.
McGown, III, Esq. 5

On December 31, 1999, claimant purchased a ticket and was skiing at Whiteface Mountain Ski Center, Town of Wilmington, Essex County. Whiteface Mountain Ski Center is a State-owned facility operated by the Olympic Regional Development Authority (hereinafter ORDA) (see, Public Authorities Law, art 8, title 28; Traina v New York State Olympic Regional Dev. Auth., 165 Misc 2d 870). According to the allegations in the proposed claim, at approximately 2:30 p.m., claimant attempted to enter the gondola lift. Claimant ostensibly stumbled while on the loading platform and allegedly fell in such a fashion that part of his body was in front of one of the lift's cars. Claimant states that the gondola car struck and ran over him, causing him to sustain personal injuries. Claimant asserts, inter alia, that the attendants at the gondola lift observed him fall and that they had ample opportunity to stop the car from striking him. He argues that their failure to stop the gondola lift in a timely fashion constituted culpable conduct.

On February 28, 2000, claimant reportedly served a notice of claim pursuant to General Municipal Law § 50-e upon ORDA and, on November 7, 2000, claimant served a summons and complaint on ORDA in an action venued in Supreme Court, Essex County. After commencing the action in Supreme Court, claimant apparently became cognizant of Public Authorities Law § 2622(4), which places exclusive jurisdiction in the Court of Claims to hear claims arising out of the operation by ORDA of a State-owned Olympic facility. Whiteface Mountain Ski Center is a State-owned Olympic facility (Traina v New York State Olympic Regional Dev. Auth., supra, at 875). Claimant has now moved for permission to late file a claim pursuant to Court of Claims Act § 10(6).

The threshold issue in a motion for permission to late file a claim is whether the motion was served before the expiration of the germane Statute of Limitations (see, Court of Claims Act § 10[6]; CPLR, art 2). The proposed claim sounds in negligence and is therefore governed by a three-year Statute of Limitations (CPLR 214). Claimant's motion was served less than a year after the claim accrued. The motion is timely and the relevant statutory factors must be addressed.

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).

Claimant asserts as an excuse for not filing a timely claim that he initially believed (and apparently still believes) that an action could be brought against ORDA in Supreme Court, Essex County. Claimant argues that the law is not clear regarding the appropriate court in which to sue ORDA. In support of his argument, he cites Osiecki v Olympic Regional Dev. Auth. (256 AD2d 998), a personal-injury claim that occurred at Gore Mountain Ski Center and which was tried in Supreme Court, Essex County. Claimant's reliance on Osiecki is misplaced because such claim accrued on February 8, 1988. Actions against ORDA that accrued prior to 1994 were properly venued in Supreme Court (see, Pandolph v State of New York, 155 Misc 2d 612). In 1994, however, the Legislature amended Public Authorities Law § 2622 to confer exclusive jurisdiction upon the Court of Claims for claims against ORDA involving incidents occurring at State-owned Olympic facilities (L 1994, ch 169, § 93). Accordingly, claims arising out of accidents at Whiteface Mountain Ski Center fall within the exclusive jurisdiction of the Court of Claims (Traina v New York State Olympic Regional Dev. Auth., supra). Claimant's proffered excuse, that he was unaware of or confused by the pertinent law, is not an acceptable excuse (see, e.g., Matter of P.A. v State of New York, AD2d , 716 NYS2d 423; Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753). The first factor weighs against claimant.

The related factors of notice, opportunity to investigate and substantial prejudice will be addressed jointly. Claimant filed an incident report at the ski center on the day the accident occurred. Moreover, he served ORDA with a notice under the General Municipal Law within less than 90 days of the incident. Although the 50-e notice was not the correct jurisdictional document to serve upon ORDA, it nevertheless served the practical purpose of putting ORDA on timely notice that litigation might ensue from claimant's mishap. The court finds that defendants had notice of the incident and such notice afforded ample opportunity to conduct a meaningful investigation. The presence of notice and an opportunity to investigate preclude defendants from persuasively asserting that they will suffer substantial prejudice if a claim is permitted to proceed. The factors of notice, opportunity to investigate and lack of prejudice militate in favor of granting the application.

Determining whether claimant has established a meritorious claim has been characterized as the most important factor 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; Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308). The hurdle for the merit factor is, however, set low. A claimant must merely show that the papers submitted establish reasonable cause to believe a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).

Analysis of an accident at a ski center begins with the Safety in Skiing Code (L 1988, ch 711 § 1; General Obligations Law, art 18). The Legislature recognized that skiing is a voluntary activity that may be hazardous regardless of the safety measures employed by ski area operators (General Obligations Law § 18-106). The participants in downhill skiing and snowboarding thus assume the significant risks inherent in such activities, including the potential for injury-producing accidents attributable to terrain, weather conditions, slope conditions, trees and person-produced objects that are incidental to maintaining a ski area (Ruepp v West Experience, 272 AD2d 673; Jordan v Maple Ski Ridge, 229 AD2d 756, 757; see, Morgan v State of New York, 90 NY2d 471).

Neither party to the present litigation has cited any provision of the Safety in Skiing Code which, under the prevailing circumstances, controls the scope of duty or the standard of care applicable to lift attendants.[1] The statutory scheme envisions both that attendants will be trained to properly perform their tasks (General Obligations Law § 18-103[3][b]) and that skiers will exercise prudence in using lifts (General Obligations Law § 18-104). The relevant regulations, while setting forth some general requirements pertaining to attendants (see, e.g., 12 NYCRR § 32-2.56), do not directly address the situation presented in the proposed claim. In a case that pre-dated the Safety in Skiing Code, the Appellate Division implicitly accepted a common-law negligence analysis in holding that factual issues were presented by allegations that a lift operator failed to stop the lift in a timely manner (Isserles v Gil-Ed Corp., 14 AD2d 857).[2] The Safety in Skiing Code states that any duty not specifically addressed in the code will continue to be governed by the common law (General Obligations Law § 18-107). The court finds that the duty of lift attendants regarding a potential emergency stop of a lift is not specifically addressed by the Safety in Skiing Code and therefore their conduct should be measured by the standard of reasonable care under the prevailing circumstances.

Here, claimant has submitted an affidavit from his attorney and a verified proposed claim. The affidavit of the attorney, who does not purport to have personal knowledge of the facts, is of no value in determining whether a meritorious claim has been articulated (cf., Vermette v Kenworth Truck Co., 68 NY2d 714; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916). Facts can be gleaned from the proposed claim indicating that it is claimant's contention that he fell in front of a gondola car, that attendants observed his fall, that there was time to stop the car, that the attendants failed to stop the car and that claimant was struck by the car. While merely being struck by a gondola car does not necessarily point toward liability (see, Simoneau v State of New York, 248 AD2d 865), claimant's allegation that there was ample opportunity to stop the lift satisfies the low threshold that governs the meritorious claim factor in an application for permission to late file a claim. The court finds that, although the issue is close, the papers presented establish reasonable cause to believe a valid claim exists. The meritorious claim factor thus tips in favor of granting claimant's application.

The final factor is whether claimant has any other available remedy. Although claimant apparently believes he may be permitted to proceed in Supreme Court, Essex County, such belief does not appear well-founded (see, Public Authorities Law § 2622[4]). Claimant's optimism notwithstanding, the court concludes he does not have another remedy; a finding that, ironically, weighs in favor of granting claimant's current application.

Upon weighing and considering the factors set forth herein, the court exercises its discretion and permits claimant to late file a claim.

It is

ORDERED that claimant's motion is granted, and he is directed to serve and file his claim within 35 days of the filed-stamped date of this decision and order, such service and filing are to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims (see, e.g., Court of Claims Act § § 11, 11-a).

January 26, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] Other jurisdictions with ski safety legislation have arrived at sundry conclusions regarding the impact of their various statutory schemes upon the liability of chair lift attendants (see, e.g., Kent v Alpine Valley Ski Area, 240 Mich App 731, 613 NW2d 383 [immunity for ski lift operator in absence of expert testimony establishing a violation of the relevant statute]; Bayer v Crested Butte Mountain Resort, 960 P2d 70 [Col] [statute does not protect operators of ski lifts and such individuals are governed not by ordinary negligence, but by the highest degree of care]; Cowan v Tyrolean Ski Area, 127 NH 397, 506 A2d 690 [common law standard replaced by requirement of proof of violation of statutes or germane rules]; see generally, Annotation, Liability for Injury or Death from Ski Lift, Ski Tow, or Similar Device, 95 ALR3d 203).
[2] Although it was once held in this jurisdiction that chair lift operators were common carriers subject to a standard of care higher than ordinary negligence (Grauer v State of New York, 15 Misc 2d 471, affd 9 AD2d 829), the Legislature subsequently excluded lifts from the statutory definition of a common carrier (Transportation Law § 2[6]; see, D'Amico v Great American Recreation, 265 NJSuper 496, 627 A2d 1164).