New York State Court of Claims

New York State Court of Claims

DIAMOND v. THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and the NEW YORK STATE CANAL CORPORATION, #2004-028-514, Claim No. NONE, Motion No. M-67499


Synopsis


Case Information

UID:
2004-028-514
Claimant(s):
In the Matter of the Application of DAVID M. DIAMOND and MICHELE DIAMOND
Claimant short name:
DIAMOND
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and the NEW YORK STATE CANAL CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67499
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MARTIN, HARDING & MAZZOTTI, LLPBY: Keith J. Starlin, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. FriedmanAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 11, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application pursuant to Court of Claims Act §10(6) for permission to late file a Claim:

  1. Notice of Motion and Supporting Affidavits of Keith J. Starlin, Esq. (Starlin Affidavit) with annexed Exhibits A-I, David M. Diamond (Diamond Affidavit) with annexed Exhibit A and Irving Paris (Paris Affidavit) with annexed Exhibit A, filed October 8, 2003;
  1. Movant's Memorandum of Law;
  1. Affirmation in Opposition of Assistant Attorney General Michael W. Friedman (Friedman Affirmation) with annexed A Exhibit, filed October 23, 2003; and
  2. Reply Affirmation of Keith J. Starlin, Esq., (Starlin Reply) with annexed Exhibit A, filed November 5, 2003.
David M. Diamond (Movant) and his wife, derivatively, seek the Court's permission to late file a claim against the Defendants alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). Movant, employed as a carpenter foreman by Kubricky Construction Corp, alleges that on February 11, 2002 at approximately 6:20 p.m. he was injured on the job when two "shebolts" fell and struck him about the head. At the time of the accident, Movant was working on the rehabilitation of Lock E-2 of the Erie Canal in Waterford, Saratoga County, New York. The work was being performed pursuant to a contract between the New York State Canal Corporation and Movant's employer (Starlin Affidavit Exhibit C). Movant alleges that his work location was within Lock E-2, on a scaffold approximately 30 feet above the ground, and that the "shebolts", each weighing in excess of 20 pounds, fell from a height of 10 or more feet above Movant's location on the scaffold. The impact rendered Movant unconscious and caused serious injury. The Defendants oppose the motion.

As a threshold issue, the Court must determine whether Movant's application for permission to late file his claim was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR. The failure to file such application within the prescribed time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607 [citation omitted]). The causes of action presented herein are governed by the three year statute of limitations set forth in CPLR § 214. As such, the instant application is timely made.

It is well settled that the factors the 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 factor the Court examines is whether the delay in filing the claim was excusable. The instant application was filed when Movant's new counsel[1] discovered that the earlier served Notice of Intention to File a Claim, inter alia, incorrectly set forth the date, time and place of the accident (see Diamond Affidavit ¶ 15, Starlin Affidavit Exhibit A). As Defendants note, it is well settled that ignorance of the law, the excuse offered by Movant (Diamond Affidavit ¶¶ 16 and 17) is not an acceptable excuse (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654) for delay in filing a claim. A careful reading of Movant's submission reveals that Movant has conceded that there is no reasonable excuse for the delay in filing the claim (see Starlin Affidavit ¶ 14 [omitting reasonable excuse as a basis for granting the application]; ¶36). Also unexplained is the nearly one year delay between substitution of counsel and the making of this application. Accordingly, this factor weighs against Movant's application.

The factors of notice, opportunity to investigate and prejudice can be viewed together. Defendants assert that it lacked notice of this accident and may have been prejudiced (Friedman Affirmation ¶¶ 10, 11) but does not suggest it lacked an opportunity to investigate the accident. Notwithstanding the shortcomings of the Movant's Notice of Intention, Defendants' affirmation is silent with respect to the completed New York State Thruway Authority, Construction Bureau "Initial Notification of Work Zone Accident - Form A" and the New York State Thruway Authority, Construction Bureau "Construction Employee Accident Report - Form C" which are appended to Movant's application (Starlin Affidavit, Exhibits E and F). These forms, dated the day of the accident, and the Supervisor's Accident Investigation Report (Starlin Affidavit Exhibit G) contain many of the factual particulars necessary to investigate this accident and at least one of the forms was submitted to the Defendants (id. see Carmen v State, 49 AD2d 965, 966 [accident report, Workers' Compensation records gave State abundant notice]). On this record, the Court cannot conclude that Defendants lack notice of the essential facts or that Defendants have been precluded from a meaningful opportunity to investigate the allegations. The Court finds these factors weigh in favor of the instant application.

The most decisive component in the algorithm to determine a motion under Court of Claims Act § 10 (6) is whether the proposed claim appears to be meritorious, 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). Movant 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. (Matter of Santana v New York State Thruway Auth., supra at 11). Movant 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, Ct Cl, Midey, J., Claim No. NONE, Motion No. M-64481, 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., Claim No. None, Motion No. M-61948, August 4, 2000, UID#2000-007-043). 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).

Defendants do not raise an objection to the merits of the proposed claim and that factor is therefore presumed to weigh in the Movant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

Notwithstanding the absence of any argument in opposition in Defendants' reply to the Movant's meritorious claim argument, the Court has reviewed the proposed claim. Movant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Accordingly, the Court is persuaded that Movant has proposed meritorious claims for violation of the Labor Law §§ 200, 240(1), 241(6), as well as common law negligence, and as such, this factor weighs in favor of the application.

Inasmuch as the Court has found an appearance of merit to Movant's direct causes of action, it necessarily follows, that the derivative claim on behalf of Movant's spouse, likewise has the appearance of merit.

Turning to the final factor of another available remedy, it appears that Movant has pursued his Workers' Compensation remedy (see Starlin Affidavit , Exhibit I) which causes that factor to weigh against Movant (see Biggs v State of New York, New York State Thruway Authority, and New York State Canal Corporation, a Subsidiary Corporation of the New York State Thruway Authority, Ct Cl, Fitzpatrick, J., Claim No. NONE, Motion No. M-62319, June 5, 2001, UID #2001-018-088).

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Movants' motion for permission to file a late claim.

Accordingly, Movants' application for permission to late file a claim is GRANTED and Movants are directed to file and serve a claim identical to the proposed claim, annexed as Exhibit A to the moving papers, 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.







March 11, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] A consent to change attorney was executed on October 24, 2002 (Diamond Affidavit ¶ 14).