4) "Affirmation in Response" of Maureen A. Keegan, Esq. (Keegan Reply)
filed April 7, 2003.
Filed Papers: Notice of Claim for Damages
filed December 23, 2002.
A review of the filed claim reveals that Claimant, a construction worker, was
injured on May 9, 2002 while working on a construction project at the Eastern
Correctional Facility. Claimant alleges that on said date, he fell from a
makeshift elevated platform that was improperly constructed over a stairway.
Claimant alleges that the Defendant violated Labor Law §§ 240, 240(6),
241 and 241(a) in permitting him to work on the unsafe platform and in failing
to provide safety devices.
Defendant has timely moved by pre-answer motion to dismiss this claim as
untimely served due to a failure by Claimant to verify his Notice of Intention
(King Affirmation ¶ 4). Claimant, acknowledging the failure to
verify the Notice of Intention as required of Court of Claims Act § 11,
opposes this application asserting that the defect is waivable and that
Defendant, by failing to reject same has in fact waived the defect (Keegan
Affidavit ¶ 4).
Pursuant to Section 11 (b) of the Court of Claims Act"[t]he claim and notice of
intention to file a claim shall be verified in the same manner as a complaint in
an action in the supreme court." The requirements set forth in Court of Claims
Act § 11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth
., 75 NY2d 721,
722; Commack Self-Sev. Kosher Meats v State of New York, 270 AD2d 687; see
also Lichtenstein v State of New York
, 93 NY2d 911, 912-913
[applying same principles to requirements of Court of Claims Act § 10]).
The Court is not free to temper application of a rule of law, whether done in
the exercise of discretion, equity or because there is no prejudice and a harsh
result will be avoided (see Martin v State of New York
, 185 Misc 2d 799,
804-805, collecting cases). This Court has previously held that the failure to
verify a Claim is a non-waivable jurisdictional defect (see Devers v
State of New York
, Ct Cl, Sise, J., Claim No. 104407, Motion No. M-65151,
UID #2002-028-050, August 29, 2002) and finds no reason to deviate from that
holding with regard to a notice of intention (see also Carpenter v
State of New York
, Ct Cl, Collins, J., Claim No. 105065, Motion No.
M-64462, UID #2002-015-233, March 28, 2002 [lack of verification of notice of
intention was jurisdictional defect properly raised in this pre-answer
). Accordingly, claimant's Notice of
Intention, although timely served, is deemed a nullity (see Edens v
State of New York
, 259 AD2d 729) and consequently, Claimant could not
properly avail himself of the two year period in which to file a claim as
provided by Court of Claims Act §10(3) (see Torres v State of New
, 233 AD2d 389). As such, the claim filed and served more than seven
months after its accrual is untimely and must be dismissed.
Accordingly, Defendant's motion to dismiss Claim No. 107114 is GRANTED.
In apparent recognition of the foregoing outcome, Claimant has cross-moved for
relief which the Court will treat as seeking permission to late file a
pursuant to Court of Claims Act §
10(6). The Defendant opposes the cross-motion on, inter alia
of the statutory factors (King Opposition
, ¶ 5 [lack of a reasonable
excuse]; ¶ 6 [lack of notice] and ¶ 8 [prejudice]).
As a threshold issue, the Court finds that the application for permission to
late file a claim was timely filed within the relevant statute of limitations
provided by Article 2 of the CPLR.
It is well-settled that the factors a Court must consider in determining a
properly framed CCA 10 (6) motion are whether 1) the delay in filing the claim
was excusable, 2) the State had notice of the essential facts constituting the
claim, 3) the State had an opportunity to investigate the circumstances
underlying the claim, 4) the claim appears to be meritorious, 5) the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
State, and 6) there is any other available remedy (see Matter of
Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop.
Section IV v New York State Employees' Retirement System, Policemen's &
Firemen's Retirement Sys., 55 NY2d 979, 981).
The first and last factors weigh against Claimant's application. Contrary to
Claimant's assertion (see Keegan Affidavit ¶ 15), Workers'
Compensation, although not a complete remedy, is an available remedy for
purposes of evaluating a §10(6) application (see, Nicometti v State of
New York, 144 AD2d 1036, lv denied 73 NY2d 710). Claimant offers no
reasonable excuse for the delay in filing the Claim, insisting that it is timely
filed (see Keegan Affidavit ¶10).
The factors of notice, opportunity to investigate and prejudice are generally
viewed together. Here, Defendant asserts that it lacked notice of the subject
incident through either an accident or injury report (King Affirmation
¶ 6) and that based upon its preliminary investigation, there is no
such report (id. Fn 1). Notwithstanding the fact Claimant apparently
delayed obtaining medical treatment for his injuries and continued working
(see Keegan Affidavit, Exhibit A), and assuming arguendo there are
no accident or incident reports, the Defendant received all the notice required
to alert it to the claim (see e.g. Sandlin v State of New York,
294 AD2d 723 [ the issue is not whether the State has an accident report, but
rather whether it has notice of the nature of the claim]), upon the receipt of,
an albeit defective, notice of intention which was served within 90 days of the
accrual of the alleged claim. As such, these factors weigh in favor of the
Turning to the issue of merit, the Court notes the Defendant has not opposed
the application upon this factor. This factor is often referred to as the most
decisive factor since it would be futile to permit a meritless claim to
proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d
1, 10). Claimant must establish the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid claim exists. (Id. at 11). Claimant need not establish a
prima facie case at this point, but rather the appearance of merit (see
e.g. Jackson v State of New York, Claim No. NONE, M-64481, Midey, J.,
February 19, 2002, UID #2002-009-007) a standard which has been described as a
"low threshold" (Bernard v State of New York, Ct Cl, Bell, J., August 4,
2000, UID#2000-007-043, Motion No. M-61948 ). Generally, in reviewing the
allegations in the proposed claim any "[f]acts stated in a motion for leave to
file a late claim against the State are deemed true for purpose of motion, when
not denied or contradicted in opposing affidavits [citations omitted]."
(Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334,
affd 47 NY2d 976).
In this proposed claim, Claimant has alleged violations of Labor Law,
§§ 240, 240(6), 241 and 241-a, as well as common law negligence, all
arising from the State's ownership of the construction site where the accident
occurred. 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. Given the
factual averments giving rise to Claimant's injury are uncontradicted, those
facts can potentially support a finding of liability against the State, based
upon certain theories of liability (alleging various violations of Labor Law)
set forth in the Claim. That being said, the Court must resolve which Labor Law
sections Claimant is proceeding under as Claimant inexplicably has alleged
violation of two non-existent sections of the Labor Law; namely, Labor Law
§§ 240(6) and 241(a), while omitting the more commonly plead
allegations of Labor Law §§ 240(1) and 241(6). Inasmuch as Defendant
has not objected to the merits of the proposed claim and the proposed claim has
alleged specific conduct in violation of apparently applicable safety
requirements (such as not utilizing two inch thick flooring for the
platform/scaffold [see proposed claim, ¶ 2]; see Ross v Curtis-Palmer
Hydro-Electric Co., 81 NY2d 494, at 505), the Court will exercise its
discretion and read the proposed claim as asserting causes of action under the
foregoing sections of the Labor Law as well as Labor Law § 241-a.
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Claimant's motion for permission to file a
Accordingly, Claimant's application for permission to late file a claim is
GRANTED and Claimant is directed to file and serve a claim identical in sum and
substance to the proposed claim, annexed as Exhibit B to the moving papers, with
such modifications as identified herein as necessary and to do so in conformity
with the requirements of Court of Claims Act §§ 10, 11 and
11-a within thirty (30) days of the date this Decision and Order is filed.