New York State Court of Claims

New York State Court of Claims

MATYJASIK v. THE STATE OF NEW YORK, #2002-031-036, , Motion No. M-64359


Claimant's motion for permission to file a late claim is granted.

Case Information

WAYNE MATYJASIK Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Claimant for an order permitting Claimant to file a late claim:
1) Notice of Motion, filed November 21, 2001;
2) Affidavit of Wayne Matyjasik, sworn to October 22, 2001.;
3) Proposed claim of Wayne Matyjasik, filed January 7, 2002;
4) Opposing Affidavit of William D. Lonergan, Esq., sworn to January 16, 2002;
5) Reply Affidavit of Barry J. Donohue, Esq., sworn to April 18, 2002;
6) Reply Affidavit of Wayne Matyjasik, sworn to April 25, 2002;
7) Sur-reply Affidavit of William D. Lonergan, Esq., sworn to May 15, 2002.

Upon the foregoing papers and upon oral argument of counsel for the parties, the motion is granted. Wayne Matyjasik brings this motion 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 March 17, 2001 incident which occurred at a construction project at the Buffalo State Teachers College at the State University of New York, Buffalo State College. At the time of the alleged incident, Claimant was working for Donald J. Braasch Construction, with whom Defendant had contracted for the removal of asbestos in or near an air conditioning unit located on the roof of the building. Claimant asserts that part of the project involved removing the air conditioning unit from what Claimant describes as a recessed area, or vault, in the roof. According to Claimant, to accomplish this it was necessary to remove the catwalk which encircled the unit and also protected workers from falling to the floor of the recessed area. Claimant alleges that, in the process of doing his job, he was required to step across the open area, where the catwalk had been, between the roof and the air conditioning unit. He allegedly slipped while stepping across this span and fell approximately 20 feet to the floor of the vault. He alleges that he sustained, inter alia, a fractured humerus and two torn rotator cuffs.

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).

This motion was filed approximately eight months after Claimant's accident. As for his excuse for the delay, Claimant alleges that he did not realize initially how severe his injuries were and that, failing to contact an attorney earlier, he believed that his exclusive remedy was to file a Workers' Compensation claim. These are not legally cognizable excuses and therefore this factor weighs in Defendant's favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a §10(6) application and does not necessarily preclude the relief sought here (Bay Terrace Coop., supra).

Claimant admits that he was entitled to benefits available to him under the Workers' Compensation Law. I note that the right to receive Workers' Compensation benefits 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 Defendant's 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). Claimant alleges that he believes that Defendant had notice of the accident as his supervisor was present at the time of the accident and had a contractual obligation to report the accident to the State. Defendant counters with an assertion that it was unaware of the incident until this motion was filed. Defendant also attached as exhibit A to the May 15, 2002 sur-reply affidavit of Assistant Attorney General William D. Lonergan, the "Project Log Sheet" received from Claimant's employer on the day of the accident. This document makes no mention of Claimant's accident. Defendant goes on to argue that, as it was unaware of the incident, it had no opportunity to investigate the accident.

Claimant asserts that, regardless of notice and opportunity to investigate at the time, Defendant is not prejudiced as it can adequately investigate the accident now. According to Claimant, the building and air conditioning unit are still in substantially the same condition as on the date of the accident. Defendant has apparently undertaken no investigation in connection with this motion but argues that it would be significantly prejudiced by the lack of notice and a previous investigation because "conditions which existed at the time of the alleged incident have now significantly changed." (January 16, 2002 Lonergan affidavit, paragraph 11) This issue is somewhat troubling. Defendant does not specify how conditions have changed or how such a change would prevent a meaningful investigation at this time. Though Claimant did allege that a patch of snow caused him to slip, I find that the removal of the catwalk and Claimant's need to jump over the resulting unprotected vault are the significant areas of concern. Presumably, the vault, catwalk, and air conditioning unit are still available for inspection and witnesses to the incident, including Claimant's supervisor Robert Bishop, are still available for interview. Therefore, I find that Defendant would not be substantially prejudiced by permitting the proposed claim to be filed.

With regard to merit, Claimant alleges simply that, while in the course of his employment for one of Defendant's contractors and on Defendant's property, he fell from a height due to Defendant's failure to provide adequate or appropriate safety devices. Defendant argues that Claimant has failed to demonstrate merit because Claimant has not set forth an adequate factual basis to establish a violation of Labor Law section § 240. I disagree.

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). 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 ). I find that removing an air conditioning unit from the roof of a building falls within the protections of Labor Law § 240 (see, Perez v New York City Indus. Development Agency, 223 AD2d 628; Sprague v Peckham Materials Corp., 240 AD2d 392). Claimant's allegations that he fell into the unprotected vault in the course of such a task establishes that the proposed claim has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), I find that they weigh in favor of granting the relief requested.

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 reflecting the Court's amendment of the caption, but otherwise identical to the proposed claim dated October 17, 2001, in support of this motion; and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this order is filed.

September 6, 2002
Rochester, New York

Judge of the Court of Claims