New York State Court of Claims

New York State Court of Claims

FINIZIA v. THE STATE OF NEW YORK, #2005-019-506, Claim No. None, Motion No. M-69538


Claimant's motion for leave to file a late claim arising from injury sustained while incarcerated is granted with respect to common-law negligence, but denied with respect to alleged violations of Labor Law.

Case Information

EDWIN FINIZIA The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
ZWIEBEL, BRODY, GOLD & FAIRBANKS, LLPBY: Jeffrey M. Brody, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 7, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim based solely upon alleged violations of Labor Law 200, 240 (1) and 241 (6) pursuant to CCA 10 (6). More specifically and as will be discussed further hereinbelow, claimant emphatically insists that this motion seeks relief to file a late claim based only upon violations of the Labor Law, not ordinary negligence and not medical malpractice.[1] (Affirmation of Jeffrey M. Brody, Esq., ¶ 4; Reply Affirmation of Jeffrey M. Brody, Esq., ¶ ¶ 2 & 3). The State of New York (hereinafter "State") opposes the motion.

On March 1, 2003, claimant, an inmate, alleges he was assigned to work in the chapel at Sullivan Correctional Facility. Claimant avers that he "[h]ad to retrieve instruments, specifically a guitar, that was stored on a very high shelf within the chapel, unreachable without the assistance of a climbing device such as a ladder. Unfortunately, there were no ladders made available to me for my use. As a result, I climbed up on a series of shelves at a height of at least six feet in order to accomplish the assigned task." (Cl.'s Affidavit, ¶ 3). Claimant fell from the shelves and broke both ankles. Claimant further alleges that correction officer(s) were in the area at the time of his fall, witnessed him climbing the shelves and came to his immediate aid after his fall, although they did not witness the fall itself. (Cl.'s Affidavit, ¶ 5). Claimant also alleges that there were no "ladders or other such appropriate climbing apparatus" made available to him in the chapel. (Cl.'s Affidavit, ¶ 7).

As a threshold issue, the court must determine whether it has jurisdiction to review and determine this motion. (CPLR 214; CCA 10 [6]). This motion was filed on January 5, 2005, relating to an incident which occurred on March 1, 2003. Thus this motion, which alleges causes of action based on violations of the Labor Law, has been timely made within the parameters of CPLR article 2, namely three years from the date of accrual.

Turning to the substance of claimant's motion, the factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;

5. 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

6. the claimant has any other available remedy.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, a claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11).

As noted above, claimant's counsel avers that this proposed claim "[i]s not a claim based in ordinary negligence, but rather on very specific sections of the New York State Labor Law." (Affirmation of Jeffrey M. Brody, Esq., ¶ 4). Claimant's assumption as to the applicability of the Labor Law to the facts of this case is misguided. It is well-settled that the Labor Law is not directly applicable to inmate claims arising within a correctional facility. (Maldonado v State of New York, 255 AD2d 630; D'Argenio v Village of Homer, 202 AD2d 883, 884). That having been said, however, the State owes a duty to exercise reasonable care to provide for an inmate's safety, including proper instruction and supervision, and to provide "[a] safe place in which to work and with safe equipment in good repair and properly maintained." (Fitzgerald v State of New York, 28 Misc 2d 283, 285; Maldonado, 255 AD2d 630; Kandrach v State of New York, 188 AD2d 910, 913). As such, although not directly applicable, the Labor Law and regulations issued thereunder may be reviewed in determining the standard of care applicable to the State in a common law action for negligence at a correctional facility. (Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665; Palmisano v State of New York, 47 AD2d 692). Of course, "[t]he mere happening of an accident carries with it no presumption of negligence on the part of the State [citation omitted]." (Fitzgerald, 28 Misc 2d at 285). Moreover, "[w]here an inmate fails to use ordinary care and pursues a dangerous course of conduct, he or she is required to take some responsibility for his or her own negligence [citations omitted]." (Martinez v State of New York, 225 AD2d 877, 878). In fact, claims have been dismissed where an inmate has refused to use proper safety equipment or to call a supervisor's attention to the fact that such protective equipment has become unusable. (Maldonado, 255 AD2d 630; McLoud v State of New York, 237 AD2d 783, 785).

Here, the circumstances leading up to claimant's decision to climb the shelves are not set forth in much detail. For instance, claimant does not indicate whether he was instructed to retrieve the instrument from the high shelf by a supervisor, whether he had previously been instructed where a ladder was located, whether he advised the correction officer(s) that no ladder was available, or whether the correction officer(s) who witnessed him climbing the shelves instructed him to stop. Nevertheless, the State has not offered anything in opposition from someone with firsthand knowledge disputing the general circumstances leading up to this accident. It is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). As such, in view of the relatively low threshold applicable on late filing motions, the court finds that the allegations here are sufficient to demonstrate the appearance of merit for an action for ordinary negligence, but not based on specific violations of the Labor Law. (Abruzzese v State of New York, Ct Cl, June 13, 2000, Corbett, Jr., J., Claim No. None, Motion No. M-59455 [UID No. 2000-005-516]).[2]

As noted above, claimant has not sought permission to file a late claim based upon a medical malpractice cause of action claim in connection with this application. More specifically, claimant's counsel concludes that since claimant's medical treatment is ongoing the time in which to comply with CCA 10 and 11 has not yet been triggered. (Affirmation of Jeffrey M. Brody, Esq., ¶ 4; Reply Affirmation of Jeffrey M. Brody, Esq., ¶ 3). The court makes no determination on the applicability of the continuous treatment doctrine to this case, but cautions claimant against presuming the continuing application of the continuous treatment doctrine, particularly in light of the commencement of litigation.[3]

With respect to the remaining factors, claimant offers as an excuse for his late filing his unawareness that he possessed a Labor Law claim. As noted above, the proposed cause of action is based in common law negligence, not on violations of the Labor Law. In any event, ignorance of the law is an unacceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs against claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. The State has failed to come forward with an affidavit from anyone with firsthand knowledge of these events, such as the correction officer(s) on the scene denying any allegation set forth by claimant. (Matter of Powell v State of New York, 187 AD2d 848; Calzada v State of New York, 121 AD2d 988, 989). Given the timely notifications of the nearby correction officer(s), the court finds that the State obtained notice of the essential facts and an opportunity to investigate. Accordingly, the court also finds that the State would not suffer substantial prejudice were this application granted as there is no allegation that witnesses are no longer available. The court finds these three factors favor claimant.

The last factor is whether claimant has any other available remedy. The State has conceded that claimant has no alternate remedy. The court agrees and finds this factor weighs in claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that five of the six factors, including the all-important factor of merit, weigh in claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED that claimant's motion for permission to late file, Motion No. M-69538, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The proposed claim should be revised to reflect an ordinary negligence cause of action and not violations of the Labor Law. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the court with particular reference to CCA 10, 11 and 11-a.

February 7, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69538, dated December 30, 2004, and filed January 5, 2005.
  2. Affirmation of Jeffrey M. Brody, Esq., in support of motion, dated December 30, 2004, with attached exhibits.
  3. Affidavit of Edwin Finizia, in support of motion, sworn to December 18, 2004.
  4. Proposed Claim, verified December 30, 2004.
  5. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated January 14, 2005, and filed January 18, 2005.
  6. Reply Affirmation of Jeffrey M. Brody, Esq., in support of motion, dated January 18, 2005, and filed January 19, 2005.
  7. Supplemental Reply Affirmation of Jeffrey M. Brody, Esq., in support of motion, dated January 26, 2005, and filed January 31, 2005.

[1]In fact, claimant's counsel even explains that the reference to medical malpractice in the proposed claim, mistakenly entitled a Notice of Claim, was "[n]ot intended to be a claim of liability, but rather notice to the State that an element of Mr. Finizia's damages was caused by possible medical malpractice." (Reply Affirmation of Jeffrey M. Brody, Esq., ¶ 3).

[2]Selected unreported decisions from the Court of Claims are available via the Internet at

[3]It is well-settled that a medical malpractice claim accrues on the date of the alleged wrongful act or omission and is governed by a 2 ½ year statute of limitations. (CPLR 214-a; Nykorchuck v Henriques, 78 NY2d 255, 258). The continuous treatment doctrine, however, affords an exception to that general rule by providing that the statute of limitations will not begin to run until the end of the course of treatment, so long as said treatment is "related to the same original condition or complaint." (McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155). The Third Department, however, has stated that a claimant's initiation of the legal process "[c]learly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' at that point [citation omitted]." (Toxey v State of New York, 279 AD2d 927, 929, lv denied 96 NY2d 711).