New York State Court of Claims

New York State Court of Claims

REYNOLDS v. THE STATE OF NEW YORK, #2001-028-566, Claim No. NONE, Motion No. M-63734


Synopsis


Permission to late-file granted.

Case Information

UID:
2001-028-566
Claimant(s):
TRISTA REYNOLDS
Claimant short name:
REYNOLDS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-63734
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ALEXANDER & CATALANO, LLPBY: Peter Catalano, Esq.
Defendant's attorney:
F. DOUGLAS NOVOTNY, ESQ.
Third-party defendant's attorney:

Signature date:
OCTOBER 16, 2001
City:
ALBANY
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for permission to late-file her claim:
1. Notice of Motion, and Supporting Affirmation of Peter Catalano, Esq. filed on July 9, 2001,

with annexed Exhibits 1-5 (Catalano Affirmation).

Opposition Papers: NONE.[1]

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 filed.

OCTOBER 16, 2001
ALBANY, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] By letter dated August 10, 2001 Defendant's counsel advised the Court that it does not oppose the instant motion.