Supplemental Attorney Affidavit, with Exhibits 5
As set forth in the proposed claim (see Exhibit C to Items 1,2)
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
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
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
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.