Movant's application for late claim relief pursuant to Court of Claims Act 10
(6) is granted. The proposed claim attached to the motion papers as Exhibit A
seeks to recover damages for personal injuries sustained by the movant on
January 22, 2004 at the State University of New York at Albany's Cancer
Research Center, 9 University Place, East Greenbush, New York. At that time and
place movant was a laborer employed by U.W. Marx, the general
contractor/construction manager of a project which involved the construction of
a building at the site. Paragraph 7 of the proposed claim states that the
movant was "caused to sustain serious and severe personal injuries when he was
forced to jump 15 to 17 feet to the ground from a ladder on which he was working
to avoid being struck by steel beams which were falling in a domino effect".
Among other causes of action, the claim asserts that movant's fall was caused by
a load of steel which was improperly hoisted and/or secured in violation of the
Labor Law. Defense counsel opposed the motion primarily on the grounds that
movant's delay in seeking late claim relief is not excusable. Counsel further
alleges that the proposed claim fails to establish a meritorious claim since it
fails to allege that the defendant supervised or controlled the work.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether 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 whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Since the proposed claim appears to assert causes of
action for negligence (CPLR § 214 ) and liability imposed by statute
(CPLR § 214 ) a three year Statute of Limitations applies and the motion
is properly before the Court.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
Movant alleges that the delay in timely filing and serving the claim was
attributable in part to his lack of knowledge concerning ownership of the
construction site. However, since it appears movant retained counsel shortly
after his accident this excuse amounts to law office failure which is not a
reasonable excuse (see Nyberg v State of New York, 154 Misc 2d
199, Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d
334, affd 47 NY2d 976). Nor is movant's claim that he failed to
appreciate the nature and severity of his injury until after the statutory
period had passed. It has long been held that a cause of action "arises at the
time the injury is inflicted, not when the extent of damages is ascertained"
(DeGroff v State of New York, 43 AD2d 993; Schwartz v Heyden Newport
Chem. Corp., 12 NY2d 1073). The failure to establish a reasonable excuse
for the delay in serving and filing a claim weighs against granting the
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Movant's papers allege that the
defendant had both prompt notice of the events underlying the claim and an
opportunity to investigate the happening of the accident. As a result, it is
argued that the State will not be prejudiced should late claim relief be
granted. In this regard the movant references claims which were timely served
and filed by two individuals allegedly injured in the same event which gives
rise to the instant motion for late claim relief (see movant's Exhibit
F). While defense counsel rightly points out that the timely service and filing
of these prior claims militates against finding the movant's delay to be
reasonable, the defendant has not denied movant's factual allegations regarding
notice and the opportunity to investigate or asserted that it would be
prejudiced should late claim relief be provided. As a result, the Court finds
that the State was provided timely notice of the essential facts underlying the
claim and a reasonable opportunity to investigate those facts, and would not be
prejudiced by movant's failure to timely serve a notice of intention or serve
and file a claim. These factors support the granting of late claim
As to the issue of merit, all that the movant must establish is that the
proposed claim appears to be meritorious in that "it is not patently groundless,
frivolous or legally defective and there is reason to believe that a valid cause
of action exists" (Remley v State of New York, 174 Misc 2d 523, 524).
Here movant has alleged common law negligence and the violation of numerous
provisions of the Labor Law including §§ § 200, 240 (1) and
241(6). In the Court's view, movant has met the threshold of proof required to
establish the potential merit of his claim.
Regarding the final factor, while defense counsel properly asserts that movant
has at least a partial alternative remedy in the form of a claim for worker'
compensation (see Lockwood v State of New York, 267 AD2d 832) this
fact is not determinative.
Consideration of all the statutory factors persuades the Court that late claim
relief is appropriate. Movant shall serve and file a claim substantially
similar to the proposed claim in conformity with the requirements of Court of
Claims Act § § 10, 11 and 11-a within 45 days following the filing of
this decision and order.