New York State Court of Claims

New York State Court of Claims

ROCCO v. THE STATE OF NEW YORK, #2005-015-013, Claim No. NONE, Motion No. M-69543


Late claim application granted to allow claim arising out of Labor Law 240 (1).

Case Information

ROBERT ROCCO The State University of New York is not a proper defendant. Nor is the State University Construction Fund (see Education Law § 373-a). Accordingly, the caption of the claim to be filed shall specify the State of New York as the only named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The State University of New York is not a proper defendant. Nor is the State University Construction Fund (see Education Law § 373-a). Accordingly, the caption of the claim to be filed shall specify the State of New York as the only named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Buckley, Mendleson & Criscione, P.C.By: John J. Criscione, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Costello, Cooney & Fearon, PLLCNicholas J. DeMartino, Esquire appearing
Third-party defendant's attorney:

Signature date:
May 3, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 [5]) and liability imposed by statute (CPLR § 214 [2]) 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 application.

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 relief.

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.

May 3, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 6, 2004;
  2. Affirmation of John J. Criscione dated January 5, 2005 with exhibits;
  3. Affidavit of Nicholas J. DeMartino sworn to February 24, 2005; with exhibit;
  4. Affidavit of John J. Criscione sworn to March 2, 2005.