New York State Court of Claims

New York State Court of Claims

CAJAL v. THE STATE OF NEW YORK, #2001-016-035, Claim No. NONE, Motion No. M-62793


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):

Claimant's attorney:
Lipsig, Shapey, Manus & Moverman, P.C.By: Thomas J. Moverman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Anne C. Leahey, AAG
Third-party defendant's attorney:

Signature date:
May 9, 2001
New York City

Official citation:

Appellate results:

See also (multicaptioned case)


Jose Cajal, by this motion, which is opposed by defendant, applies for permission to file a late claim under the Court of Claims Act (the "Act"). The underlying claim arose from an injury Cajal suffered while working on a construction project at the state office building in Hauppauge, Suffolk County.

On the morning of July 20, 2000, claimant, an employee of Angel Painting and Construction, was performing demolition work on the building's fourth floor. Angel Painting was a subcontractor on the job for MBL Contracting Corp. According to claimant, "[w]hile

removing a nail from a metal stud with a hammer, I was struck in the right eye by a portion of the nail that had broken off" (Cajal affid, ¶2).

The late claim provision of the Act - - section 10.6 - - sets forth six factors to be weighed in deciding such a motion, although the six are not necessarily exhaustive, and the presence or absence of a particular one is not controlling [1]: namely, whether (1) the delay was excusable; (2) claimant has any other remedy; (3) defendant had notice of the essential facts constituting the claim; (4) defendant had an opportunity to investigate; (5) defendant would be substantially prejudiced; and (6) the claim appears to be meritorious.

Mr. Cajal failed to comply with the basic 90-day filing period provided for in §10.3 of the Act because it took him some time to appreciate the seriousness of his condition. Claimant then on November 13, 2000 retained his lawyer – over 110 days after the accident. Such a set of circumstances, while comprehensible, does not constitute an excuse within the meaning of the act; it is in effect a plea based on unfamiliarity with the law. Matter of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The workers' compensation benefits structure is not equivalent to a recovery in tort, which can, inter alia, compensate for the loss of enjoyment of certain daily activities; on that basis, claimant is without an alternate remedy. But here, Cajal's employer is a subcontractor under the aegis of a general contractor, and claimant accordingly had the prospect of a lawsuit in Supreme Court against MBL Contracting Corp. Thus, claimant fails to satisfy the second of the enumerated statutory elements of §10.6.

The next three factors on notice, prejudice and opportunity-to-investigate are closely related and may, by and large, be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). The security supervisor on site at the state building filled out an accident report either that day or immediately thereafter (see cl mot, exh A, which is undated). In fact, the report stated that Cajal was taken out of the building for medical treatment "by Security Dept in N.Y. State Truck." Such is not less notice than obtained in two reported Court of Claims cases for which late claim permission was granted (both are from 1986): Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (incident report prepared two days after a slip and fall) and Matter of Crawford v City University of New York, 131 Misc 2d 1013, 502 NYS2d 916 (supervisory officials at the specific college had notice of the fall within 18 days).

Notice to the State at the site, facility or campus level may constitute notice within the meaning of the Act. Avila, supra; Matter of Gavigan v State of New York, 176 AD2d 1117, 575 NYS2d 217 (3d Dept 1991). The following procedure spelled out in the affidavit from an attorney with the State Office of General Services, does not alter the precedents on this issue:

After an accident occurs at the State Office Building in Hauppauge, an accident report is completed by OGS personnel at that building. The report is then forwarded by the building manager to the downstate regional office of OGS, which office then forwards the report to OGS's central office in Albany...With the exception of...motor vehicle accidents, an accident report from the State Office Building in Hauppauge would not be further reviewed or processed, until a Claim or Notice of Claim was served upon the State. As a result, it is the service of the Claim or Notice of Claim which causes the State to review an accident report and conduct an investigation for purposes of the defense in a lawsuit, not the completion of an OGS accident report.

[Def. affirm in opp, affirm of William F. Bruso, Jr.]
In any event, Mr. Cajal's motion papers were received less than 120 days subsequent to the July 20, 2000 accident, only 29 days beyond the statutory deadline. The motion papers provide a fuller account of how the accident happened, about which the accident report was somewhat sketchy, although the report did supply an adequate sense of the nature of the injury and where the accident happened.

Conditions at construction sites tend to be of a transitory nature, but sufficient information should exist so that the defendant's opportunity to investigate would not be genuinely impaired. It was in Matter of Donaldson v State of New York, 167 AD2d 805, 563 NYS2d 366 (3d Dept 1990) that the characterization of such sites as transitory was advanced, and in that case, a late claim was permitted even though the motion therefor was filed seventeen months after the claimant's accident.

The defendant contends it has suffered prejudice inasmuch as its insurance company refused to defend and indemnify it on the grounds that the carrier was not given timely notice of Cajal's claim. The defendant offers no authority for the proposition that an insurance company's contention that the State's alleged breach of their contract of insurance can affect a judicial evaluation of whether a particular set of facts complies with one or more of the statutory late claim criteria.

In sum, the claimant does satisfy the notice/opportunity-to-investigate/prejudice cluster of factors. The last of the six criteria in §10.6 inquires whether the claim appears meritorious.

Claimant's papers provide a fairly good account on what happened at the job site and the location thereof, the name of a witness and an extremely detailed medical report on the injury to his right eye (cl mot, exh C). Cajal's proposed claim is two-pronged, grounded on Labor Law §§200 and 241.6. The former is the codification of the common-law duty to maintain a safe construction site. There could well be a valid cause of action under this provision, but claimant would have to prove that the State of New York had the authority to control the activity from which the injury resulted. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816 (1998).

Under §241.6, an owner of property can be subject to liability even if it does not control, direct or supervise the work site. Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978). Liability under §241.6 must be founded upon the violation of a predicate safety regulation issued by the State Labor Department. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993). Claimant here relies -- and appropriately so -- upon 12 NYCRR §23-1.8 (a), which requires "[a]pproved eye protection equipment suitable for the hazard involved..."

In Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977), the following standard for determining the appearance of merit was ennunciated: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." Cajal's case unquestionably bears the appearance of merit.


Accordingly, having considered the statutory factors relating thereto and having reviewed the parties submissions[2], IT IS ORDERED that the motion (M-62793) of Jose Cajal requesting permission to file a late claim be granted. Within sixty (60) days of the filing of this Order, claimant shall serve and file his claim[3] in accordance with sections 11 and 11-a of the Court of Claims Act.

May 9, 2001
New York City, New York

Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
[2] The following papers from the claimant were reviewed: Notice of Motion with affidavits from counsel and claimant, a proposed claim and exhibits A- C; and a Reply Affirmation. From the defendant, the following was reviewed: an Affirmation in Opposition to Motion to File a Late Claim with exhibits A & B and an affirmation from William F. Bruso, Jr.
[3]Claimant entitled his proposed claim a proposed notice of intention. When it is served and filed pursuant to this Decision and Order, it should be entitled "claim."