This motion for late claim relief pursuant to Court of Claims Act § 10 (6)
is granted. Movant seeks permission to file a claim for money damages for
personal injury sustained on October 16, 2000 while working as a
laborer/operator on a construction site at the Bash Bish Bridge Rehabilitation
and Trail Construction Project allegedly undertaken by the New York State Office
of Parks, Recreation and Historic Preservation (OPRHP) at Bash
, New York. Specifically, movant alleges
that on the date of his accident he was hammering a nail into a piece of wood
when the nail flew upward into movant's left eye causing serious injury.
Movant asserts that he was not provided with eye protection of any kind at the
site and that the failure on the part of the State, as owner of the construction
site, to provide such protection constitutes a violation of Labor Law §
241 (6) and the New York Industrial Code (12 NYCRR 23-1.8 [a]). He further
asserts a violation of Labor Law § 200. Movant alleges that he suffered a
permanent loss of vision as a result of the accident and seeks damages in the
amount of three million dollars.
The defendant did not oppose the motion.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy".
The motion filed on March 4, 2002 is timely in that a claim for personal
injuries negligently caused or for which liability is imposed by statute is
governed by the three year Statute of Limitations set forth in CPLR § 214
(5) or § 214 (2).
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuse offered for the failure to timely commence the claim was movant's
unfamiliarity with the filing and service requirements of the Court of Claims
Act. It is settled that ignorance of the law is not an acceptable excuse
(Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of
New York, 91 AD2d 792). This factor weighs against granting movant's
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. Movant alleges in his supporting affidavit that a New
York State Inspector was assigned to the project and timely filed a report of
the incident. He attached an affidavit of the inspector (Armando Alvarez) to
his application which indicates both the filing of a report with the Staatsburg
Office of OPRHP and oral notification to the inspector's supervisor (Ken
Lutter). Thus, it appears that the State was provided timely notice of the
accident and an opportunity to investigate. Since the State has not opposed the
application no prejudice has been shown or facts alleged from which prejudice
could be inferred. The Court concludes that these factors weigh in favor of
granting the application.
As to the issue of merit, the proposed claim appears to present potentially
viable causes of action under Labor Law § § 200 and 241 (6). In order
to establish a meritorious claim it is movant's burden to show that the proposed
claim is not patently groundless, frivolous or legally defective and there is
reasonable cause to believe that a valid claim exists (see, Rosenhack
v State of New York, 112 Misc 2d 967; Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1). In the Court's view movant has met that
As to the final factor, it does not appear that movant has any other remedy
available under the circumstances.
A review of the record on the motion and the statutory factors lead the Court
to conclude that late claim relief is appropriate. Accordingly, movant's
motion is granted.
Movant is hereby directed to file a verified claim with the Chief Clerk of the
Court and to serve a copy thereof upon the Attorney General either personally
or by certified mail, return receipt requested, as provided in Court of Claims
Act § 11 (a) (i) within 30 days of service upon him of a copy of this
decision and order. Movant is advised that the proposed "notice of claim"
[sic] submitted to the Court with the late claim application does not
satisfy this requirement since it was submitted prior to the granting of the