New York State Court of Claims

New York State Court of Claims

EPIC SECURITY v. THE STATE INSURANCE FUND, #2005-016-021, Claim No. None, Motion No. M-69216


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):

Alan C. Marin
Claimant’s attorney:
Condon Resnick, LLPBy: Brian K. Condon, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 3, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Epic Security Corp. (“Epic”) for permission to file three late claims pursuant to §10.6 of the Court of Claims Act (the “Act”). The proposed claims arise from the alleged mishandling by the State Insurance Fund (the “Fund”) of three Workers’ Compensation claims brought by Epic employees. It is essentially alleged that because of such mishandling, the employees were successful in receiving Workers’ Compensation benefits, thereby causing Epic’s insurance premiums to rise. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion – are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Defendant has not disputed that these three factors have been met, and claimant has alleged numerous communications between Epic and the Fund concerning Epic’s dissatisfaction. On balance, I find that these factors have been satisfied.

As to an alternate remedy, defendant does not challenge that this Court is where Epic’s remedy lies. With regard to excuse, claimant’s counsel states that he initially believed that Supreme Court was the appropriate place to sue. Such is not an adequate excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claims appear meritorious. The basis of the three claims is as follows:
- The first proposed claim arises from the Workers’ Compensation claim of Epic employee Robert Bedor, who asserted that he slipped and fell while on the job, injuring his back and requiring him to have back surgery. Epic alleges that using private surveillance, it videotaped Mr. Bedor cutting thick branches and bending several times, just weeks after his “alleged” back surgery. Epic complains that the State Insurance Fund failed to subpoena its investigator or otherwise introduce the videotape into evidence at the initial Workers’ Compensation hearing, or to follow up thereafter.
- The second proposed claim arises from the Workers’ Compensation claim of Epic employee Kesnel Philippe. According to Epic, on his day off, Mr. Philippe came to work, confronted another employee about missing items from a refrigerator, and started a fist fight, during which he was injured. Epic complains that the Fund did not notify it of the hearing, depriving it of the opportunity to have an employer witness present.
- The third proposed claim arises from the Workers’ Compensation claim of Epic employee Sean Seabrook. According to Epic, Seabrook slipped and fell while attacking his supervisor. Claimant appears to assume that the Fund lawyer at the hearing failed to raise the fact that Seabrook had started the fight, or to raise the “Workers’ Compensation Law Section 10.1 exclusion for intentional injury,” because neither the judge’s oral nor written decisions mentioned same. Claimant also complains that the Fund failed to appeal the decision.

With regard to merit, defendant argues that Epic’s claims presuppose that but for the Fund’s alleged mishandling, the employees would not have received Workers’ Compensation benefits, but that in fact, all three claims were valid and compensable and would have in any event resulted in benefits being awarded.

With regard to the Bedor claim, defendant points out that the medical documentation showed disc herniations at L4-L5 and L5-S1, and also showed that Bedor had undergone a laser disectomy at Cabrini Medical Center. Defendant also states that photo excerpts of the videotape taken after Bedor’s surgery were in fact submitted to the Workers’ Compensation Board, and the mere fact that he could do some yard work following surgery does not in and of itself provide proof that Workers’ Compensation benefits should have been denied to him.

With regard to the Philippe claim, defendant does not dispute or even address the allegation that Epic was not advised of the hearing and thus not afforded the opportunity to present an employer witness.

As to the Seabrook claim, defendant does not indicate whether the intentional injury exclusion was raised at the hearing, although defendant essentially argues that such exclusion would not apply to Seabrook (or to Philippe), because it does not apply where the altercation arose out of a clash over work-related disputes, which was the case with both Seabrook and Philippe.

Defendant has raised issues that claimant will ultimately have to address at trial, but for the purposes of this motion, claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

Accordingly, having reviewed the parties’ submissions[2], IT IS ORDERED that motion no. M-69216 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claims submitted with this motion, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

March 3, 2005
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The Court reviewed: claimant’s notice of motion with affirmation in support and exhibits A through H; defendant’s affidavit in opposition; and claimant’s “Affirmation in Further Support for Claimant’s Motion for Permission to File Late Notices of Claim.” It should be noted that claimant requested oral argument of this motion, but in view of the Court’s decision, such is not necessary.