Opposition Papers: NONE.
By an earlier decision (Reynolds v State of New York, Claim No.101868,
M-62810, Sise, J., [June 25, 2001]), this Court dismissed an earlier filed
claim brought against the State of New York, by Claimant, Trista Reynolds,
alleging Labor Law §§ 200, 240 and 241 violation resulting in
injuries sustained while Claimant was working on a New York State Thruway
Authority bridge holding that New York State was not an "owner" of Thruway
property for the purposes of the workplace safety statutes. This application
ensued to permit late-filing of the claim pursuant to Court of Claims Act
§10(6) as against the New York State Thruway Authority.
The proposed claim (Catalano Affirmation, Exhibit 5) alleges that on November
7, 1999, claimant Trista Reynolds fell while working on a bridge on the New
York State Thruway near Exit 21 of Route 87 and suffered serious injuries and
scarring. It is alleged that at the time she was injured, claimant was employed
by either Liberty or E & D and was performing work called for under a
contract between her employer and defendant. The claim sets forth causes of
action based on Labor Law §§ 200, 240 and 241.
As a threshold issue, the Court has jurisdiction to review and determine this
motion since it was timely filed within the relevant statute of limitations
provided by Article 2 of the CPLR.
It is well-settled that the factors a Court must consider in determining a
properly framed CCA 10 (6) motion are whether 1) the delay in filing the claim
was excusable, 2) the State had notice of the essential facts constituting the
claim, 3) the State had an opportunity to investigate the circumstances
underlying the claim, 4) the claim appears to be meritorious, 5) the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
State, and 6) there is any other available remedy (see, Matter of
Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop.
Section IV v New York State Employees Retirement System, Policemen's &
Firemen's Retirement Sys., 55 NY2d 979, 981).
The defendant does not oppose this application on the basis of any of the
statutory factors and those factors are therefore presumed to weigh in the
claimant's favor (see, Calzada v State of New York, 121 AD2d 988;
Cole v State of New York, 64 AD2d 1023, 1024).
Notwithstanding defendant's concession on the motion, the Court has reviewed
the proposed claim (Catalano Affirmation, Exhibit 5). Claimant has
succeeded in establishing that the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid cause of action exists (Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1).
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting claimant's motion for permission to file a
late claim. Claimant is therefore directed to file and serve a claim identical
to the proposed claim and to do so in conformity with the requirements of Court
of Claims Act §§ 10 and 11 within sixty (60) days after this order is