New York State Court of Claims

New York State Court of Claims

AKENS v. THE STATE OF NEW YORK, #2002-009-020, Claim No. NONE, Motion No. M-64379


Synopsis


Claimants application to serve and file a late claim was granted.

Case Information

UID:
2002-009-020
Claimant(s):
KENNETH A. AKENS and CAROL ANN AKENS
Claimant short name:
AKENS
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-64379
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
MICHAELS & SMOLAK, P.C.
BY: Michael G. Bersani, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 30, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants seeks permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Michael G. Bersani, Esq., with Exhibits (Including Proposed Claim as Exhibit A) 1,2


Affidavit of Kenneth Akens, with Exhibit 3


Affidavit of Morris L. Cleverley, Jr., with Exhibit 4

Correspondence dated February 21, 2002, Notice of Appearance from Kevin E. Hulslander, Esq. 5,6

In their proposed claim, claimants allege that claimant Kenneth A. Akens was injured on January 21, 2000, when he slipped on debris while working on a prison construction project at the former Seneca Army Depot in Romulus, New York. At the time of the incident, Mr. Akens was employed by O'Grady-McCormick Mechanical Contractors.

Liability against the State is premised upon an alleged violation of Labor Law, § 241(6). The claim of Carol Ann Akens is derivative in nature. As set forth above, Mr. Akens was allegedly injured on January 21, 2000. A claim was not served within 90 days of this incident, nor was a notice of intention served within 90 days of such date, as required by Court of Claims Act, § 10(3).

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).

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.

The Court has carefully considered all of the factors set forth in Court of Claims Act § 10(6). Based upon the fact that the defendant has voiced no opposition to this motion, and the Court being satisfied that claimants have established a meritorious claim through the affidavit of their expert, Morris L. Cleverley, Jr., it is the opinion of this Court that claimants should be allowed to file the proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-64379 is hereby GRANTED, and claimants are directed to serve their claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the filing date of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of Court of Claims Act, §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.


April 30, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims