New York State Court of Claims

New York State Court of Claims

BRIGGS v. THE STATE OF NEW YORK, #2003-009-09, Claim No. NONE, Motion No. M-65969


Claimants application for permission to serve and file a late claim was granted.

Case Information

TIMOTHY A. BRIGGS and NANCY M. BRIGGS The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
BY: Robert R. Jones, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Greene, Hershdorfer & Sharpe
Bruce G. Soden, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
March 5, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants seek permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6). Claimant Timothy A. Briggs seeks damages for personal injuries allegedly suffered by him in a construction site accident which occurred on November 15, 2001, while he was working on a bridge replacement project on New York State Route 3 in Mexico, New York. The claim of Nancy M. Briggs, the wife of Timothy A. Briggs, is derivative in nature.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affidavit, Affidavit of Timothy A. Briggs, with Exhibits


Affidavit in Opposition, with Exhibit 4

Supplemental Attorney Affidavit, with Exhibits 5

As set forth in the proposed claim (see Exhibit C to Items 1,2) claimant[1] was employed by R. DeVincentis Construction Company on November 15, 2001, on which date he was working at a bridge re-construction project on Route 3 over the Little Salmon and Sage Creek in the Town of Mexico, Oswego County. He alleges that on that date, he and another worker were walking across a plank, which was spanning an excavated trench, when the plank tipped or swayed, causing claimant to fall approximately eight feet to the floor of the creek, and that he sustained personal injuries as a result of this fall.

This application for permission to serve and file a late claim was made almost one year from the date of this incident. The claim is premised upon alleged violations of Labor Law, §§ 200, 240(1), and 241(6), as well as common law negligence.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, it is claimant's position that he was not aware of the severity of his injuries until September 24, 2002, when he was advised by his orthopedic surgeon that he would require surgery on his right knee. Claimant further asserts that he immediately thereafter consulted with his attorneys, who then prepared this application. However, a claimant does not necessarily have to know the extent or severity of his or her injuries in order to proceed with a claim in this Court. In this case, claimant was certainly aware that he suffered injuries from his fall on November 15, 2001, since he received medical treatment for his injuries that day, and remained out of work, under doctor's orders, until April, 2002. Accordingly, the Court finds that claimant's assertion that he was not aware of the severity of his injuries is without merit, and that claimants therefore have not established that their delay in filing this claim was excusable.

The factors of notice, opportunity to investigate, and lack of prejudice will be considered together. As set forth in the papers before the Court on this application, the State's engineer-in-charge on this project was Donald Kohn. Mr. Kohn was present at the construction site on a daily basis, and was notified about this particular accident on the day that it occurred. Furthermore, it also appears that the State conducted an investigation immediately following this accident (see Exhibit A to Item 5). The Court therefore finds that the State had actual notice of this accident immediately upon its occurrence. Additionally, not only did the State have an opportunity to investigate the facts and circumstances surrounding this incident, it actually conducted such investigation. Accordingly, the Court finds that the State will not suffer any undue prejudice should the Court allow this claim to be served and filed at this time.

In order to establish a meritorious claim, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Claimant only has to establish the appearance of merit and need not prove a prima facie case at this stage of the proceedings.

In this proposed claim, claimants have alleged violations of Labor Law, §§ 200, 240(1), and 241(6), as well as common law negligence, all arising from the State's ownership of the construction site where the accident occurred. In opposition, defendant argues that the claimants did not sufficiently particularize the facts alleged in their proposed claim, and that they have offered no expert proof to establish any causal connection between claimant's injury to his right knee and his fall.

A claim is required to state the time when and place where it arose, the nature of the claim, the items of damage or injuries alleged to have been sustained, and the total sum claimed (Court of Claims Act, § 11). The language of the claim must be sufficiently specific so as to enable the defendant to conduct an investigation into the circumstances of the claim, and ascertain its potential liability (Grande v State of New York, 160 Misc 2d 383).

In this matter, the Court has reviewed the allegations set forth in the proposed claim, and finds them sufficiently detailed both as to the nature of the claim, as well as to the theories of liability alleged. Furthermore, as previously mentioned, the State did conduct an investigation immediately following this accident, and therefore has within its knowledge specific information as to the location of this accident, and how it occurred. The Court therefore finds that the claim contains sufficient particulars in accordance with the requirements of Court of Claims Act, § 11.

Defendant also argues that claimant has not established a causal relationship between his alleged injuries and his fall, and has failed to support his claim with expert testimony. Expert testimony, however, is not an absolute requirement for purposes of establishing an appearance of merit in late claim applications. As previously stated herein, for purposes of this application claimants only have to establish an appearance of merit, and do not have to establish a prima facie claim. The facts as alleged in this proposed claim can potentially support a finding of liability against the State, based upon the theories of liability (alleging various violations of Labor Law) set forth in the claim. The Court therefore finds that claimants have established an appearance of merit, without the necessity of expert testimony, in their proposed claim.

The final numerated factor is whether the claimants have another available remedy. In the papers before the Court, there is an implication that Mr. Briggs applied for and received workers' compensation benefits. Such benefits are considered another available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though they may only be a partial remedy (Garguiolo v New York State Thruway Authority, 145 AD2d 915). It therefore appears that claimants do have another available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Based on the foregoing, and upon weighing and considering all of the factors set forth in Court of Claims Act, § 10(6), it is the opinion of this Court that claimants should be allowed to file their proposed claim.

In the papers submitted in opposition to this motion, defendant's attorney had requested that the Court order limited pre-action discovery, primarily concerning claimant's medical condition, prior to any determination of this late claim application. Based upon the decision made herein granting claimants' application, defendant's request for pre-action discovery has been rendered moot. Accordingly, it is

ORDERED, that Motion No. M-65969 is hereby GRANTED, and claimants are directed to serve their claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the filing date of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of Court of Claims Act, §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

March 5, 2003
Syracuse, New York

Judge of the Court of Claims

[1] Since the claim of Nancy M. Briggs is derivative in nature, all references to claimant, unless otherwise indicated, are to Timothy A. Briggs.