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
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
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
¶ 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
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
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.