New York State Court of Claims

New York State Court of Claims



Late claim relief granted to would be claimant who sustained injury by falling from a device being used as a scaffold at State canal system construction site.

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:
Finkelstein & Partners, LLPBy: Andrew L. Spitz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for an order permitting him to file and serve a late claim pursuant to Court of Claims Act § 10 (6) is granted upon the condition that a claim in conformity with Court of Claims Act § 11 (b) is filed and served within sixty days of the date this decision and order is filed. The proposed claim seeks to recover damages for personal injuries allegedly sustained by the movant as a result of the defendant's violation of sections 200, 240 (1) and 241 (6) of the New York State Labor Law. Movant alleges that he was injured at approximately 12:45 p.m. on December 15, 2001 while employed by C.D. Perry & Sons at a construction/renovation project at Lock 5, Champlain Canal, Saratoga County, which is owned and operated by the New York State Canal System/Thruway Authority. Specifically he alleges that while attempting to install plastic end covers on one end of a fill tunnel he stood upon a wooden device constructed by a fellow worker from two by fours and plywood and used by movant as a form of scaffold to reach the top of the fill tunnel. The plastic covers were being installed so the tunnel could be heated in preparation for the pouring and curing of new concrete walls. Movant alleges that because the tunnel was eight feet high and six feet wide its dimensions did not permit a ladder to be opened within it prompting his co-worker to fashion the subject platform which was approximately 24 inches high, 37 inches long and 14 inches wide[1] (see, Exhibit A) in order to permit movant to reach to the top of the fill tunnel. The movant alleges that due in part to the tunnel's jagged, moss covered and icy floor the platform proved to be unstable and that upon the completion of his task he was caused to lose his balance and to fall from the platform sustaining serious personal injuries. It is also alleged on the motion that movant's employer immediately reported the incident to appropriate State officials including the project's resident engineer (Kenneth Baldwin) who prepared and filed a written report with the Thruway Authority Construction Bureau dated December 21, 2001 (see, Exhibit A).

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".

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).

Movant seeks to assert a cause of action which is subject to a three-year Statute of Limitations pursuant to CPLR § 214 (5). The application is therefore timely as measured from December 15, 2001, the date of the movant's accident.

Turning to the statutory factors, the excuse advanced for the movant's failure to timely serve and file a claim is his failure to recognize the severity and permanent nature of his ankle injury. It has long been held that a cause of action "arises at the time the injury is inflicted, not when the extent of the damages is ascertained" (DeGroff v State of New York, 43 AD2d 993; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 1073). Thus, the excuse offered is not found to be reasonable under the present circumstances and this factor weighs against the application.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Defense counsel has not refuted the movant's allegations with regard to notice, opportunity to investigate and prejudice in her opposing affirmation and, in fact, states that the defendant takes no position with regard to these issues (see, para 6, Resnick affirmation). Accordingly, these issues are resolved in favor of granting the motion.

Moreover, while defense counsel properly asserts that movant has at least a partial alternate remedy available in the form of a claim for workers' compensation (see, Lockwood v State of New York, 267 AD2d 832), this fact is not determinative.

Finally, the defendant argues unpersuasively that the proposed claim lacks merit. While one or more of movant's purported statutory causes of action may ultimately prove legally insufficient, movant does not bear the burden of demonstrating the legal viability of each and every probable cause of action on a late claim application. It is well settled that on an application for late claim relief the Court must only be satisfied 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; Santana, Matter of, v New York State Thruway Auth., 92 Misc 2d 1). In the Court's view movant has met that burden.

A review of all of the statutory factors persuades the Court that late claim relief is appropriate.

November 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court has considered the following papers:
  1. Notice of motion dated September 20, 2002;
  2. Affirmation of Andrew L. Spitz dated September 20, 2002 with exhibits;
  3. Affidavit of Keith A. Eggleston sworn to August 27, 2002;
  4. Affirmation of Kathleen M. Resnick dated October 30, 2002;
  5. Reply affirmation of Andrew L. Spitz dated November 5, 2002.

[1]These dimensions differ somewhat from the figures set forth in claimant's affidavit and that of his attorney but were obtained from the photographs attached to the motion as Exhibit A.