New York State Court of Claims

New York State Court of Claims

ESCHBERGER v. THE STATE OF NEW YORK, #2003-031-090, Claim No. None, Motion No. M-66549


Synopsis


Case Information

UID:
2003-031-090
Claimant(s):
DAVID ESCHBERGER
Claimant short name:
ESCHBERGER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66549
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CELLINO & BARNES, P.C.BY: DAVID O. TEACH, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney GeneralBY: NO APPEARANCE
Third-party defendant's attorney:

Signature date:
November 17, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed March 13, 2003;
  1. Affidavit of David O. Teach, Esq., sworn to March 10, 2003, with attached exhibits; This is the motion of David Eschberger 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 July 10, 2002 incident which occurred at a construction project on Chestnut Ridge Road in Orchard Park, New York. At the time, Mr. Eschberger was employed by the Occhino Corporation and was performing work at a parking lot purportedly owned by Litwin Castle & Christ, Inc. Claimant alleges, however, that the accident actually occurred on State-owned property. According to Claimant, he fell while descending into a drainage ditch and sustained injuries to his right knee. In November of 2002, Mr. Eschberger was forced to undergo an operation as a result of his injuries. He alleges violations of Labor Law §§ 200, 240(1) and 241(6).
Defendant has not opposed this motion.

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).

Claimant asserts that he has no other remedy and that his delay in filing was caused by the fact that he did not initially believe that his injuries were so severe, and that he was not at first aware that the State of New York owned the property on which he was injured. He alleges that Defendant had notice of, and an opportunity to investigate, the incident because the accident was reported to Merchants Insurance Group who, in January of 2003, provided notice to the State. Claimant maintains that his proposed claim has merit as it clearly alleges the Defendant's negligent failure to comply with the provisions of the Labor Law.

As the Defendant has offered no opposition to this motion, I find that it must be granted. With no opposition, Claimant's assertions regarding the six factors described above are uncontroverted. I find that the proposed claim is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

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 identical to the proposed claim submitted in support of this motion, except that it shall be entitled "Claim" rather than "Notice of Claim"; 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.

November 17, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims