Notice of Motion, Attorney's Affidavit, with Exhibits 1,2
Memorandum of Law 3
Letter from Assistant Attorney General Christopher Wiles, dated July 30,
Thomas Putnam, claimant's decedent, died on August 4, 1998, following an
accident which occurred at Buttermilk Falls State Park in Ithaca, New York. Mr.
Putnam was employed by the Bolton Point Water System (Southern Cayuga Lake
Intermunicipal Water Commission) and on that day he was performing work at the
park. Mr. Putnam had to descend into a manhole/underground vault in order to
run a wire to a remote water meter, where he ultimately passed out due to a lack
of oxygen, and died later that day.
Janis Putnam was appointed Administratrix in the Estate of Thomas Putnam on
December 9, 1998. A notice of intention to file a claim was subsequently served
upon the Attorney General on February 4, 1999, and a claim was thereafter served
on the Attorney General and filed with the Chief Clerk of the Court of Claims on
August 4, 2000, seeking damages for the wrongful death of Thomas Putnam, as well
as for his conscious pain and suffering.
In its answer, defendant raised as an affirmative defense the fact that
claimant had failed to serve a notice of intention or serve and file a claim as
to decedent's claim for conscious pain and suffering within 90 days after
occurrence of the incident (see Items 1,2, Exhibit D, par. 10). In response to
that affirmative defense, claimant has brought the instant motion seeking
permission to serve and file a late claim for the decedent's pain and suffering.
Pursuant to Court of Claims Act, § 10(2), a claim against the State
seeking damages for wrongful death must be filed with the Court and served upon
the Attorney General within 90 days after the appointment of a personal
representative of the decedent, unless the claimant within such time serves upon
the Attorney General a notice of intention to file a claim, in which case the
claim must be served and filed within two years after the death of the decedent.
In this claim, a notice of intention to file a claim was served upon the
Attorney General within 90 days after Janis Putnam received her appointment as
Administratrix of the Estate of Thomas Putnam. Thereafter, the claim was both
served on the Attorney General and filed with the Court on August 4, 2000,
thereby satisfying the statutory requirement that a wrongful death claim be
served and filed within two years of the death of the decedent. Therefore,
there is no question that the aspect of the claim seeking damages for wrongful
death was timely served and filed.
It is well established, however, that the provisions of Court of Claims Act,
§ 10(2), pertaining to wrongful death claims, do not apply to a survival
action seeking to recover for the decedent's conscious pain and suffering
(Pelnick v State of New York, 171 AD2d 734). Instead, such actions are
governed by Court of Claims Act, § 10(3), which requires that a claim be
served and filed, or in the alternative, a notice of intention be served, within
90 days after accrual of the cause of action. In this case, it is clear that
neither a claim nor a notice of intention seeking damages for the decedent's
conscious pain and suffering was served and/or filed within such time period.
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the commencement and maintenance of a claim
against the State, and must be strictly construed (Finnerty v New York State
, 75 NY2d 721; Byrne v State of New York
, 104 AD2d
782, lv denied
64 NY2d 607). Accordingly, even though defendant has not
sought to dismiss this aspect of Claim No. 102853 in this proceeding, it is
jurisdictionally defective and subject to dismissal at any
Claimant apparently concedes that its claim for conscious pain and suffering is
untimely as to service and filing, and has therefore brought the instant motion
seeking permission to serve and file a late claim. Pursuant to § 10(6) of
the Court of Claims Act, such application must be brought "before an action
asserting a like claim against a citizen of the state would be barred under the
provisions of article two of the civil practice law and rules." The claim for
conscious pain and suffering is based upon alleged acts of negligence against
the State, which is governed by a three year statute of limitations. Since this
application was filed July 23, 2001, and the date of the incident occurred on
August 4, 1998, it is timely.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim 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 a claim and the failure to
serve upon the Attorney General a timely claim or notice of intention; and (6)
whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
In this application before the Court, claimant's counsel has not addressed the
factor of excuse. From a review of the papers before the Court, this Court does
not find any reasonable excuse for claimant's delay in pursuing a claim for
conscious pain and suffering. This factor therefore weighs against claimant.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. As set forth in the affidavit of claimant's
attorney, the accident which forms the basis of the claim was extensively
investigated immediately after its occurrence by various State agencies,
including the New York State Park Patrol and the New York State Department of
Labor. The State was therefore clearly on notice shortly after the accident
occurred, and not only had an opportunity to investigate the circumstances
underlying the claim, but in fact actually conducted such an investigation.
Additionally, and as previously discussed, claimant's existing claim for
wrongful death has been timely served and filed, and the State is currently
defending that claim. The State, therefore, cannot argue that it will be
substantially prejudiced (and it has not made such a claim) should this
application be granted.
In order to establish a meritorious cause of action, it is the burden of the
claimant to show that the proposed claim is not patently groundless, frivolous,
or legally defective and that there is reasonable cause to believe that a valid
claim exists (Matter of Santana v New York State Thruway Authority, 92
Misc 2d 1). Claimant only has to establish the appearance of merit and need not
prove a prima facie case at this stage of the proceedings.
Based upon the investigation conducted by the State, the New York State Office
of Parks, Recreation and Historical Preservation was cited for certain
violations of the Public Employee Safety and Health Act of 1980, as described in
claimant's moving papers (see Item 1,2, Exhibit G). Such violations included
the failure of the defendant to evaluate the work place, the failure to have a
"written permit space entry program" available for inspection by their
employees, and failure to train their employees with regard to procedures
relevant to the entry of confined spaces. A violation of such duties, if
established at trial, may be sufficient to impose liability against the State.
For purposes of this application, therefore, the Court finds that a meritorious
claim has been alleged.
Claimant had also commenced an action in Supreme Court against the Town of
Ithaca, the Town of Lansing, the Town of Dryden, the Village of Lansing, and the
Village of Cayuga Heights. This case was dismissed by an Order of the Hon.
Walter J. Relihan, Jr., dated November 6, 2000 (see, Exhibit E to Items 1,2).
It therefore appears that claimant does not have any other available remedy.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors set forth in Court of Claims
Act, Section 10(6), it is the opinion of this Court that claimant's application
seeking damages for the conscious pain and suffering of claimant's decedent,
based upon the negligence of the State, should be granted.
Since the portion of Claim No. 102853 seeking damages for wrongful death was
timely served and filed, and in the interest of judicial economy, this Court
therefore directs that Claim No. 102853 be amended to include a new cause of
action seeking damages for pain and suffering, rather than having claimant serve
and file a new, separate claim for such damages.
Accordingly, it is
ORDERED, that Motion No. M-63814 is hereby GRANTED, as provided herein; and it
ORDERED, that the portion of Claim No. 102853 seeking damages for conscious
pain and suffering is hereby dismissed, sua sponte, as untimely served
and filed; and it is further
ORDERED, that claimant's application seeking permission to serve and file a
late claim seeking damages for such pain and suffering is hereby GRANTED, to the
extent that claimant is hereby given permission to amend existing Claim No.
102853 to assert such cause of action; and it is further
ORDERED, that claimant is directed to serve her amended claim upon the
Attorney General either personally or by certified mail, return receipt
requested, and to file the amended claim with the Chief Clerk of the Court of
Claims, within 45 days from the filing date of this decision and order, and the
defendant shall have 40 days after service of the amended claim to serve and
file its amended answer.