New York State Court of Claims

New York State Court of Claims

GOLISANO v. THE STATE OF NEW YORK, #2005-013-051, , Motion No. M-70494


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:
December 19, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On August 17, 2005, the following papers were read on motion by Claimant for an extension of time and/or permission to file a late claim:

Notice of Motion, Affirmation and Exhibits Annexed

Opposing Affirmation and Exhibits Annexed

Letter from Claimant's Counsel dated August 15, 2005

Letter from Defendant's Counsel dated August 16, 2005

Filed Papers: Claims; Answer

Upon the foregoing papers, this motion is denied.

Proceedings in the Court of Claims are subject to the limited waiver of sovereign immunity granted in the Court of Claims Act, and are subject to the limitations and procedures statutorily enacted with a myriad of procedural and jurisdictional requirements.

The proceedings before me stand out for the many detours that were taken on the road to the entrance to the Court of Claims. A chronological history is mandated here.

Claimant started out well enough by seeking permission to file a late claim relating to an incident in which she was injured on July 28, 2003. In a decision and order dated January 12, 2005,[1] I granted Claimant permission to serve and file a late claim, sounding only in common law negligence, "in strict compliance with the Court of Claims Act and Rules, within 30 days of service of a file-stamped copy of [that] decision and order" [emphasis supplied]. Among other things I discussed in that decision was a denial of the only other proposed cause of action, sounding in Labor Law §200.

On January 21, 2005 Claimant was served by mail with a certified copy of the aforesaid decision and order (Exhibit A to Defendant's affirmation in opposition). That started the clock and, allowing the five days added for service of that order by mail (CPLR 2103[b][2]), the claim had to be served and filed by February 25, 2005.

Nonetheless, on March 9, 2005, instead of serving and filing a claim, Claimant served the Defendant with a notice of intention to file a claim. In any event, this service was untimely. Moreover, Court of Claims Act §10(6) only addresses late claims, and there is no provision in the statute for a late notice of intention to file a claim (see De Hart v State of New York, 92 Misc. 2d 631).

On March 16, 2005, Claimant served a document entitled "Notice of Claim"[sic] upon the Defendant, despite my remonstration in the earlier decision that the proper nomenclature was "claim." That, however, was not the only problem with this document. It was unverified and, for that reason, was rejected as a nullity by the Defendant (Exhibit B to Defendant's opposing papers; see Lepkowski v State of New York, 1 NY3d 201, 209-10). Astoundingly, in addition to its untimely service, this "Notice of Claim" included the cause of action sounding in Labor Law §200 which I had specifically disallowed.

On April 7, 2005, yet another misnomered "Notice of Claim" was served upon the Defendant, this time apparently overcoming the purported verification deficiency of the March 16, 2005 "Notice of Claim." Claimant was getting closer, but this "Notice of Claim" was untimely, and also included the previously disallowed cause of action sounding in Labor Law §200 (Exhibit F to Claimant's motion papers).

The Defendant served an answer dated April 12, 2005 raising numerous affirmative defenses (Exhibit G to Claimant's motion papers).

On May 11, 2005, Claimant finally filed her "Notice of Claim" with the Clerk of the Court of Claims, who assigned it Claim No. 110873. This document still included the previously disallowed cause of action sounding in Labor Law §200. Needless to say, this filing was untimely, accomplished some two and one-half months beyond the "strict compliance" time constraints of my earlier order.

Claimant's adventures were not done. On July 25, 2005, after the passage of an additional two and one-half month period, Claimant filed and served yet another claim. While this was correctly denominated as a "Claim," and was given Claim No. 111175 by the Clerk, Claimant acknowledges that it "is not in compliance" with my earlier order.

That brings me to the instant motion which paradoxically seeks relief (1) pursuant to CPLR 2004 extending the time to serve and file a claim under the previous order of the Court and (2) for permission to file a late claim pursuant to Court of Claims Act §10(6) in the form of the claim which has already been filed and served as Claim No. 111175. Frankly, the instant motion papers are inartfully drafted, creating confusion since there are two untimely served and filed claims here, and it is particularly unclear whether the relief sought pursuant to CPLR 2004 pertains to Claim No. 110873 or Claim No. 111175. The result below ultimately resolves the confusion.

I first address Claimant's request for an extension of time pursuant to CPLR 2004. To the extent that the motion can be read as seeking this relief with respect to the new proposed claim (already filed as Claim No. 111175), it is an anachronism because it seeks to extend the time to file a claim which has never been ruled upon and has never been before me previously.

Preliminarily, I note that Claim No. 110873 was untimely served on April 7, 2005, and was untimely filed on May 11, 2005, as both had to have been completed by February 25, 2005, pursuant to my earlier order. Moreover, that claim included a cause of action which I had specifically disallowed. Given the untimeliness, and the flagrant disregard and contravention of both the substantive and procedural requirements of my prior decision and order, Claim No. 110873 is dismissed.

I thus consider the relief sought pursuant to CPLR 2004 only as it pertains to the late claim I previously permitted in Motion No. M-69094. CPLR 2004 provides that "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown ..."

Claimant has proffered no grounds, articulated no cause whatsoever, nor suggested any explanation for the failure to have complied with that order. I note that no appeal was taken from my decision and order. It was obvious from my earlier decision that I had serious reservations, but in the end decided to exercise my discretion on Claimant's behalf. Indeed from the lack of clarity of the instant motion, it appears to me that Claimant has essentially abandoned the earlier claim which I had granted her permission to file, and now seeks permission to file an entirely different claim.

Since Claimant has failed to articulate any reason whatsoever to support the requested extension of time, her motion pursuant to CPLR 2004 is denied. In so doing, I am cognizant of the fact that neither party has addressed the question whether the requested extension of time, in and of itself, would result in substantial prejudice to the State. I am also aware of the recent decision in Matter of Yackle v State of New York, et al. (21 AD3d 1283), where the Fourth Department held "under the circumstances of this case that the Court of Claims improvidently exercised its discretion in denying" an application for an extension of time. The Fourth Department highlighted that claimant's partial compliance with the prior order by having timely served the Attorney General, and cited Griffin v John Jay College (266 AD2d 16), another instance where there was partial compliance by timely service upon the Attorney General.

Here, in distinct contrast, there was no partial compliance whatsoever, as every attempted service and filing chronologized above was untimely, every document was misdenominated, and every document improperly included a rejected cause of action (except for the unnecessary and impotent March 9, 2005 notice of intention). Moreover, it does not appear that Claimant even wishes to file or serve the late claim which was originally permitted. Based on the circumstances of the motion before me, even in the absence of articulated prejudice, such relief is denied.

Claimant acknowledges that she should have made an application to the Court prior to serving and filing Claim No. 111175 on July 25, 2005, but does not explain the basis upon which she unilaterally did so, nor the basis upon which she seemingly seeks nunc pro tunc relief. Indeed, as I have addressed above, the proceedings before me are replete with rampant disregard of the procedures set forth in the Court of Claims Act and Rules, as well as my prior decision and order. Since Claim No. 111175 in actuality is the proposed late claim which Claimant seeks permission to file today, and since it was both untimely served on the Defendant and untimely filed with the Clerk of the Court nearly two years after the underlying July 28, 2003 incident (see Court of Claims Act Sections10[3] and 11[a]), it is dismissed.

Finally I address the de novo application for permission to file a late claim, one that differs from the previous motion in three distinct ways. It ostensibly differs in that "Claimant has with more specificity described the area where the accident happened and has included a derivative claim by the husband and a claim pursuant to Labor Law §241(6) and Regulation 12 NYCRR 23-1.33" (Claimant's affirmation, ¶12).

Claimant's motion papers only address the enabling statute, Court of Claims Act §10(6), by submitting that the application is made "within three (3) years of the date of the accident and therefore is a timely application so long as the Court extends its previous Order granting further time to the Claimant to serve the Claim" (id., ¶15). Additionally, in her letter in reply dated August 15, 2005, she refutes the Defendant's assertion that there was no Labor Law §241(6) cause of action, and argues the applicability of the regulation she cited.

Other than the above, at no time in her application or her reply does Claimant address any of the factors or considerations recited in Section 10(6). While I did review the factors in the earlier decision, there is no discussion here of the excuse for failing to timely allege the derivative cause of action, and the moving papers themselves contain no discussion whatsoever with respect to the appearance of meritoriousness of the newly asserted causes of action, and fail to address the concerns I articulated in my earlier decision regarding the accident.

While the proposed claim has appended two photographs purportedly marked to show a spot on the roadway, off the sidewalk, confusion and inconsistency still reign. Specifically the proposed claim asserts that the incident occurred "in front of Sam's Diner at the Public Square on Gaddes Street Extension", and the photograph has a marking that appears to show a spot on the roadway, off the sidewalk. Yet, in her August 15, 2005 letter to the Court, Claimant argues that 12 NYCRR 23-1.33 "details protection of pedestrians in work areas" and submits that it "provides protection to pedestrians on sidewalks adjacent to work areas..." [emphasis supplied]. While 12 NYCRR 23-1.33 appears to apply to pedestrians, including Claimant (see Butler v County of Chautauqua, 261 AD2d 855), the continuing equivocal aspects of Claimant's assertions are troubling.

Despite my extended discussion on Pages 2-3 of my earlier decision regarding the degree of factual inconsistency, Claimant continues to demonstrate equivocation as to the precise location where the accident took place.

Given the request to consider this new application for permission to file a late claim and the absence of any additional discussion by Claimant of the statutory factors, and given the Defendant's reiteration of all of its arguments raised in opposition to the original motion (see Paragraph 8 of Defendant's instant affirmation in opposition and Paragraphs 11 and 12 of the Defendant's affirmation in opposition to the original motion dated November 9, 2004 [Exhibit B to Claimant's motion papers herein]), I take this occasion to revisit the statutory factor of substantial prejudice. I find that Claimant's continuing equivocation of the location of the accident, and the uncertainty with respect to the offending item (to wit, was it a rock, a stone or something else?), and conclude that under the circumstances existent in this application, the prejudice to the Defendant were I to grant this application is substantial. Claimant makes no assertions whatsoever with respect to this factor.

Accordingly, based upon the above, and all the proceedings heretofore related to this accident, and after balancing the statutory factors, I deem it an improvident exercise of my discretion to grant the relief sought. The motion is denied, and, as noted above, Claim Nos. 110873 and 111175 are both dismissed.

December 19, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]Golisano v State of New York, Ct Cl, UID #2005-013-001, M-69094, Jan. 12, 2005 --
    Decisions and selected orders of the New York State Court of Claims are available on the Internet at