New York State Court of Claims

New York State Court of Claims

GOLISANO v. THE STATE OF NEW YORK, #2005-013-001, , Motion No. M-69094


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 12, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On November 17, 2004, the following papers were read on motion by Claimant for permission to file a late claim:

Notice of Motion, Affidavits and Exhibits Annexed

Opposing Affirmation and Exhibits Annexed

Claimant's Reply Affidavit

Upon the foregoing papers, this motion is granted to the extent noted.

Claimant seeks permission to file a late notice of claim [sic - should be claim] pursuant to Court of Claims Act §10(6).

The underlying incident in question occurred on July 28, 2003 at approximately 1:00 p.m. in Holley, New York. It is alleged that Claimant was walking to Sam's Diner when, according to her affidavit, she was crossing the road to go to the diner and was walking to the sidewalk when she stepped on a rock and started to fall and sustained certain personal injuries.

Preliminarily, I note that the instant motion was commenced on September 2, 2004 by service of the moving papers, and that the underlying allegations of negligence would not be time barred under the provisions of article 2 of the CPLR. A proposed, albeit unverified, claim is appended to the moving papers, and thus I will now consider the merits of this motion.

There are six statutory factors which I should consider in deciding whether to exercise my discretion on behalf of the moving party (Court of Claims Act §10[6]). Claimant's excuse for her failure to have timely served a claim or notice of intention to file a claim within 90 days of accrual of her cause of action may simply be characterized as ignorance of the law. She says that she did not know of the 90-day service and filing requirements of Court of Claims Act §§10 and 11. Ignorance of the law does not provide a reasonable excuse. Nonetheless, that is only one of several factors which I will consider, and a prospective claimant is not required to satisfy all six factors to succeed in a late claim motion (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

As to notice of the essential facts underlying the claim, and the opportunity to investigate, Claimant relies upon a document from the New York State Department of Transportation (DOT), Construction Division, "Initial Notification of Work Zone Accident - Form A," prepared by one Gary Schlabach on July 29, 2003 (attached as Exhibit A to the moving papers), which, in essence, reports the incident complained of above. This report, prepared on the very next day following the accident, appears to have satisfied these two factors. I am cognizant, however, of what appears to be a degree of factual inconsistency about where Claimant actually was walking when she tripped and fell, to wit, in the street, an inference drawn from paragraph 2 of Counsel's supporting affidavit and paragraph 3 of the proposed claim that "much rocks, stones and debris [was] left in the street" when Claimant was avoiding rocks when she stepped on one; or at the sidewalk, an inference drawn from paragraph 4 of Claimant's affidavit in support ("I was walking to the sidewalk when I stepped on a rock..."); or on the sidewalk, as reported in the very accident report relied upon by Claimant, in which she allegedly stated "that she was walking on sidewalk... when she stepped on a stone."

While the lack of clarity as to the precise location where she fell, and whether the offending item was a rock or a stone, gives me some pause, I note that the author of the accident report, Schlabach, on behalf of the Defendant, took some five photos of the vicinity in question on July 29, 2003 (Exhibit B to the Defendant's affirmation in opposition) after taking the accident report, purportedly over the phone. In any event, for purposes of this motion, I find that these factors lean to Claimant's benefit.

While I realize that the existence of a stone or rock on a street or a sidewalk in a work zone is arguably a transient condition, whatever prejudice that the Defendant might suffer in the event this motion is granted exists whether there was timely service of the claim on or about the 90th day, or upon service of the instant motion some 13 months after the incident. Accordingly, I find that whatever prejudice may exist is not the result of the delay in timely serving or filing a claim, and, in any event, is not substantial.

As to the availability of other remedies, the Defendant observes that Claimant has either sued or placed on notice Upstate Utilities and Keeler Construction Co., Inc. (Keeler), with respect to the injuries she allegedly sustained on July 28, 2003. Addressing Keeler first, it was the Defendant's general contractor for reconstruction work on Route 31 and is noted on the DOT accident report (Exhibit A to the moving papers). While there is nothing to support the Defendant's assertion about an alternate remedy except upon information and belief, Claimant has totally ignored this factor, even in her reply affidavit.

Second, Defendant asserts, without any dispute or demurral, that Upstate Utilities was performing construction work for the Village of Holley within the same area as Claimant's alleged fall, noting that the work for the Village had been coordinated with the State's reconstruction project. Thus, without knowing more, it would appear that potential remedies also exist against both Upstate Utilities and the Village of Holley. It is not clear that such remedies are viable, or are being pursued, but in any event Claimant may only recover once for her injuries.

The final and most compelling of the statutory factors is whether the proposed claim has the appearance of meritoriousness. The papers before me and the circumstances here raise a number of questions in this regard. The State, quite rightly, finds the description of the location of the alleged fall to be somewhat vague, to wit, on the street, on the sidewalk, near the sidewalk, crossing the Geddes Street Extension or Public Square. But I find that it is not so vague as to be prejudicial in these circumstances. Another issue relative to meritoriousness is whether the purported debris (stone or rock) was the responsibility of the State of New York or its general contractor, or the Village of Holley or its contractor Upstate Utilities. There certainly is some question as to whether it was a rock or a stone, and there is no description of the size of the offending item. Clearly there is a question of Claimant's failure to have seen that which was in front of her in an obvious work zone, and thus her own comparative negligence. In short, many questions remain.

Moreover, and Claimant totally fails to address Defendant's argument in her reply, I fail to comprehend the basis upon which Claimant asserts a cause of action under Labor Law §200. As Defendant observes, Claimant was not an employee of any of the entities noted above, and she therefore is not a person "employed" as that term is used in Section 200 (Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108). It is hard to fathom the grounds for such an allegation and thus I find that there is no merit to a cause of action relying upon Labor Law §200. The only remaining allegation therefore sounds in common law negligence.

While I obviously have some reservations, I cannot say that the remaining proposed cause of action is patently groundless, frivolous or legally defective, and that there is reasonable ground to believe that a cause of action may exist (Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1).

Accordingly, after balancing all the statutory factors, and upon review of the moving and opposing papers, I deem it a provident exercise of my discretion to permit Claimant to serve and file her proposed claim, amended in accordance with the above, in strict compliance with the Court of Claims Act and Rules, within 30 days of service of a file-stamped copy of this decision and order.

January 12, 2005
Rochester, New York

Judge of the Court of Claims