New York State Court of Claims

New York State Court of Claims

GOLDA v. THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORICAL PRESERVATION, #2002-031-055, , Motion No. M-65485


Synopsis


Claimant's motion for permission to have his "notice of claim" deemed a notice of intention to file a claim is granted. Determination of Claimant's motion for permission to file a late claim is reserved.

Case Information

UID:
2002-031-055
Claimant(s):
AARON GOLDA
Claimant short name:
GOLDA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORICAL PRESERVATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-65485
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CHELUS, HERDZIK, SPEYER, MONTE & PAJAK, PCBY: MATTHEW A. LENHARD, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: LAW OFFICES OF JOSEPH CALLERY
JAMES C. BRADY, ESQ.
Third-party defendant's attorney:

Signature date:
October 30, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for an order determining that his previously served "Notice of Claim" is a notice of intention to file a claim, or in the alternative, for permission to file a late claim:
1. Notice of Motion, filed July 15, 2002;
  1. Affirmation of Scott W. Kroll, Esq., dated July 10, 2002, with attached exhibits;
3. Opposing Affirmation of James C. Brady, Esq., dated August 20, 2002;
4. Supplemental Affirmation of Matthew A. Lenhard, Esq., dated August 22, 2002, with attached exhibit. Upon the foregoing papers, and upon oral argument of counsel for the parties the motion is granted.

Aaron Golda brings this motion seeking a determination that his previously served "Notice of Claim" constitutes a notice of intention to file a claim, pursuant to § 11 of the Court of Claims Act ("CCA") or in the alternative, for permission to file a late claim pursuant to CCA § 10(6). This matter stems from a November 8, 2001 incident which occurred at a construction site at the Niagara Gorge Access Project. At the time, Claimant was working for Scioli and Massaro, a subcontractor for Ciminelli Construction Corporation, which had contracted with the State to perform modification work on the project. Specifically, Claimant alleges that he was performing work at or near the observation tower when the scaffold upon which he was working gave way and he fell to the ground. Claimant alleges that he immediately reported the incident to his supervisor and that he has been out of work on disability ever since the accident.

On February 5, 2002 (the eighty-ninth day after the accident), a document entitled "Notice of Claim" was personally served upon the Attorney General's Buffalo Office. Such service complies with the requirements of CCA §§ 10 and 11 for service of a notice of intention to file a claim but, as this document was not filed with the Clerk of the Court of Claims, it fails to constitute proper service of a Claim. Defendant treated the document as a claim and filed an answer, asserting as an affirmative defense that the requirements of CCA §§ 10 and 11 had not been met because the claim was not filed with the Clerk of the Court of Claims within ninety (90) days of accrual. This motion ensued.

Claimant asserts that the document served upon the Attorney General was in fact a notice of intention to file a claim and that the inadvertent denomination of the document as a "Notice of Claim" should not alter the legal effect of preserving his rights to commence an action against the State in the future. I agree.

I find that the document served upon the Attorney General complies with the requirements of CCA §§ 10 and 11 for a notice of intention to file a claim. The document was served in a timely manner and contained the requisite information. The fact that the document was entitled a "Notice of Claim" does not render the service improper.

Based upon the foregoing it is hereby:

ORDERED, that Claimant's motion seeking a determination that the document served upon the Attorney General's Office on February 5, 2002, was a notice of intention to file a claim is granted. That document shall be deemed a notice of intention to file a claim; and it is further

ORDERED, that the portion of Claimant's motion requesting permission to file a late claim is reserved for a period of sixty (60) days from the filed date of this order, at which time it will be deemed denied as moot unless within that time period a written request to re-calendar the motion is served by first-class mail upon opposing counsel and the Clerk of the Court by counsel for Claimant.

October 30, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims