New York State Court of Claims

New York State Court of Claims

FRANGO v. THE STATE OF NEW YORK, #2004-030-933, Claim No. None, Motion No. M-68885


Synopsis


Motion for permission to late file denied based on lack of state responsibility for the subject premises and availability of alternate remedies against proper parties in supreme court.

Case Information

UID:
2004-030-933
Claimant(s):
EMILIO FRANGO
Claimant short name:
FRANGO
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-68885
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Bisogno & Meyersonby George D. Silva, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on claimant's motion for permission


to file a late notice of intention and/or claim: Notice of Motion, Affirmation, Petition and


Exhibits; Affirmation in Opposition and Exhibits.

Claimant alleges that he was injured on March 26, 2004 while working on a construction project at the Bronx County Courthouse at 851 Grand Concourse. The basis of the proposed claim is the allegation that the State of New York owned the subject premises and was the general contractor for the construction/renovation project on which claimant was working, thus implicating various provisions of the Labor Law pertaining to owners and contractors.

Defendant's papers establish that the City of New York owns the subject premises and the Dormitory Authority of the State of New York (DASNY) was the contractor. The state was not involved. Thus, there is no apparent merit to the proposed claim against the state, one of the factors to be considered on an application for permission to late file pursuant to Court of Claims Act section 10(6). As defendant notes, this court lacks jurisdiction over DASNY, which is properly sued in supreme court under its own name, pursuant to the provisions of the General Municipal Law.

Under these circumstances, analysis of the remaining factors set forth in the statute makes little sense. One cannot characterize claimant's failure to timely serve and file a claim against the state as a mistake and then analyze whether he had a reasonable excuse, when it was not a mistake at all not to proceed in this court since the court would lack jurisdiction over any claim brought against either of the responsible parties. The only prejudice that might arise from an order allowing late filing of a claim against the state would be that defendant would be forced to expend resources defending a claim that would ultimately and inevitably be dismissed because of lack of state responsibility.

The sole relevant statutory factor, other than the lack of any apparent merit to the proposed claim, is the availability of alternate remedies against the owner of the premises and the contractor in a court of appropriate jurisdiction. In any event, regardless of what steps claimant has taken to preserve such remedies, it is clear that he has no remedy against the state. Accordingly, the motion is denied.

October 18, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims