Movant's application for late claim relief pursuant to Court of Claims Act
§ 10 (6) is granted to the extent that it seeks permission to serve and
file a claim alleging a violation of Labor Law § 200 and denied as to that
portion which alleges a violation of Labor Law § 241 (6). The proposed
claim alleges that movant sustained personal injuries on October 18, 2002 while
working as a laborer/operator on a road construction project in the Town of
Plattsburgh, New York. Specifically, movant alleges that on the date of her
accident she was raking millings on the shoulder of the road as part of her
employer's (Green Island Constructors, Inc.) responsibilities pursuant to a
contract with the State of New York for the widening and paving of the shoulders
of Interstate 87. She further alleges that while so engaged she accidentally
stepped into an unprotected post hole. Her rake then caught the side of the
moving widening machine causing her body to twist and producing injury for which
she seeks compensation pursuant to Labor Law § § 200 and 241
The defendant opposed the motion.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether 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 whether the claimant has any other available remedy".
The motion filed on December 5, 2003 is timely in that a claim for personal
injuries negligently caused or for which liability is imposed by statute is
governed by the three year Statute of Limitations set forth in CPLR § 214
(5) or § 214 (2).
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuses offered for the failure to timely commence the claim was movant's
unfamiliarity with the filing and service requirements of the Court of Claims
Act and movant's failure to appreciate the severity of her injury. It is
settled that ignorance of the law is not an acceptable excuse (Matter of E.K.
v State of New York, 235 AD2d 540; Sevillia v State of New York, 91
AD2d 792). Further, lack of knowledge of the extent or severity of ones injuries
is not a reasonable excuse for the failure to timely file a claim, especially as
presented by movant and her counsel on this motion. It is argued that the
movant did not intend to litigate this matter until returning to work and
finding after one year that she was permanently disabled. Under the
circumstances described in the late claim application the Court finds the excuse
offered to be unreasonable (Atterbury v State of New York, 26 Misc 2d
422) and this factor weighs against granting movant's application.
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. Movant alleges in her supporting affidavit that New
York State inspectors were assigned to the project and that she timely reported
the incident to her employer and one of the State inspectors. Thus, it appears
that the State may have been provided timely notice of the accident and an
opportunity to investigate. The State's opposition to the motion merely alleges
that movant presented insufficient proof of notice of the underlying facts and
makes no allegation of prejudice resulting from movant's delay. The Court
concludes that these factors weigh in favor of granting the application.
As to the issue of merit, the proposed claim appears to present a potentially
viable cause of action under Labor Law § 200. In order to establish a
meritorious claim it is movant's burden to show that the proposed claim is not
patently groundless, frivolous or legally defective and there is reasonable
cause to believe that a valid claim exists (see, Rosenhack v State of
New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). In the Court's view movant has met that burden.
However, a contrary conclusion is reached relative to movant's proposed cause
of action under Labor Law § 241 (6). The proposed claim fails to "specify
any provisions of the Industrial Code allegedly violated by the State or to set
forth sufficient facts to determine the manner in which the accident occurred"
for purposes of determining the potential merit of movant's Labor Law § 241
(6) cause of action (Scarver v State of New York , 233 AD2d 858).
Movant's conclusory allegation asserting a violation of Labor Law § 241
(6), without more, is insufficient to establish that the claim is, in this
respect, meritorious. Movant's motion for late claim relief is, therefore,
denied to the extent that the proposed claim seeks to assert a cause of action
under Labor Law § 241 (6).
As to the final factor, it does not appear that movant has any other remedy
available under the circumstances, except for a workers' compensation claim
which she has pursued.
Movant is hereby directed to file a verified claim with the Chief Clerk of the
Court and to serve a copy thereof upon the Attorney General either personally
or by certified mail, return receipt requested, as provided in Court of Claims
Act § 11 (a) (i) within 30 days of service of a copy of this decision and
order. Movant is advised that the proposed claim submitted to the Court with
the late claim application does not satisfy this requirement since it was
submitted prior to the granting of the motion. The claim so filed and served
shall be consistent with the terms of the decision and order herein.