New York State Court of Claims

New York State Court of Claims
CROSTA v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, # 2002-031-021, Claim No. , Motion No. M-63793


Late claim application alleging violation of Labor Law 240(1) granted.

Case information

UID: 2002-031-021
Claimant short name: CROSTA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
Motion number(s): M-63793
Cross-motion number(s):
Claimant's attorney: Morris, Cantor, Barnes, Goodman & Lukasik
Defendant's attorney: HON. ELIOT SPITZER
Attorney General of the State of New York
Law Office of Lawrence M. Rubin
Third-party defendant's attorney:
Signature date: June 12, 2002
City: Rochester
Official citation:
Appellate results: 4 AD3d 897
See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:

This is the motion of Margaret Crosta for permission to file a late claim pursuant to 10.6 of the Court of Claims Act (the"CCA"). The proposed claim alleges negligence stemming from a July 15, 1999 incident which occurred at a highway reconstruction project on interstate 190 in Buffalo, New York(1) . At the time, Ms. Crosta was working for Baker Heavy Highway Inc., a contractor for Defendant(s). Claimant, a foreman on the project in charge of traffic control and signage, alleges that she was injured when she fell from a height of approximately two feet while tightening bolts on a traffic sign that she had climbed. Claimant did not report the accident at the time, but advised her superintendent "shortly thereafter." Claimant alleges that she injured her back and, as a result, underwent a lumbar fusion in December of 1999. Claimant alleges that Defendants are liable for her injuries pursuant to the provisions of Labor Law 240(1).

Subdivision 6 of 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant does not offer a reason for her delay in bringing this motion other than to say that, at the time of the incident, she did not think that her injury was serious. However, it can be assumed that she was aware that her injuries were serious when she had her operation in December of 1999, yet she waited an additional eighteen months to bring this motion. This factor, therefore, weighs in favor of Defendants.

Claimant does not address whether or not she has any other remedy, though it is assumed that she had the right to receive Worker's Compensation benefits, which I note can serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though it may be a partial remedy (Garguiolo v New York State Thruway Authority, 145 AD2d 915). This factor, too, weighs in Defendants' favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Apart from the use of the phrase "shortly thereafter," Claimant does not indicate when she advised her supervisor that she had been injured. Claimant alleges, however, that Defendants had, and still have, an opportunity to conduct a meaningful investigation of the incident. She alleges that the sign from which she fell is still at its original location and she has identified several witnesses to the incident. Defendants have not attempted to contact any of these individuals and, apart from its general and conclusory assertions that too much time has gone by, have identified no specific manner in which it would be significantly prejudiced if the claim were allowed to proceed. Without some kind of showing that Defendants would be significantly prejudiced if this application were granted, I find that these factors tend to weigh in Claimant's favor.

The final factor to be considered is merit. Merit is often considered the most important of the six enumerated factors, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (See, e.g., Prusack v State of New York, 117 AD2d 729). And, though Claimant's counsel demonstrated an appreciation for this point during oral argument, it should be noted that, once merit is shown, a claimant who fails to address the other factors does so at his or her peril. For instance, even when merit is demonstrated beyond a doubt, the existence of significant prejudice to a defendant may be, and often is, the controlling factor.

Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Here, Claimant was injured when, without any safety devices, she fell from a sign at a construction site. This matter, therefore, arguably falls within the ambit of Labor Law 240. While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case. (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ). Therefore, although there are arguments concerning the nature and mechanics of Claimant's fall and subsequent injuries which call into question the application of Labor Law 240, Claimant has succeeded in establishing that the proposed claim has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA 10(6), the Court finds that they weigh in favor of granting Claimant's motion for permission to file a late claim.

Based upon the foregoing it is hereby

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim (except correcting Claimant's initial improper identification of the accident location as the Robert Moses Parkway in Niagara Falls, New York) dated July 12, 2001, in support of this motion; and to do so in conformance with the requirements of CCA 10 and 11 within sixty (60) days after this order is filed.

June 12, 2002

Rochester, New York


Judge of the Court of Claims

1. In its original papers, Claimant mistakenly identified the location of the accident as the Robert Moses Parkway in Niagara Falls, New York. This mistake was corrected at oral argument without objection from Defendant.