New York State Court of Claims

New York State Court of Claims



Claimant's motion for permission to file a late claim is granted

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:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read on motion by Claimant for an order permitting her to file a late claim:
1) Notice of Motion, filed December 23, 2004;
2) Affidavit of Dominic Pellegrino, Esq., sworn to December 16, 2004;
3) Affidavit of Barbara J. Buckmann, sworn to December 20, 2004, with attached exhibits;
4) Memorandum of Law, dated December 20, 2004;
5) Affirmation of Thomas G. Ramsay, AAG, dated February 28, 2005;
6) Affidavit of William Clifford, sworn to February 24, 2005;
7) Reply Affidavit of Dominic Pellegrino, Esq., sworn to March 4, 2005;
8) Affidavit of Barbara J. Buckmann, sworn to March 3, 2005, with attached exhibits.

Upon the foregoing papers the motion is granted. Barbara J. Buckmann brings this motion for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). The proposed claim alleges a violation of Labor Law § 240(1) in that on June 9, 2003, she was employed by the New York State Canal Corporation ("Canal Corp.") as Chief Lock Operator at Lock 33 of the Erie Canal ("Canal") in the Town of Brighton, County of Monroe, State of New York. On that day, she fell approximately 13 feet while repairing a damaged signal light mounted on the canal wall. She sustained injuries to her left leg, hip, pelvis and shoulder.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

This motion was filed approximately 18 months after Claimant's accident. As for her excuse for the delay, Claimant alleges that she improperly assumed that the Canal Corp. was a separate and distinct entity from the New York State Thruway Authority ("Thruway Authority") and the State of New York, and thus believed that her only course of action would be a claim for Workers' Compensation. Claimant did apply for such relief and was paid benefits. She later learned that the State of New York and/or the Thruway Authority owned the Canal, whereupon she consulted an attorney to see what, if any, recourse was available to her. This mistake is not a legally cognizable excuse for the delay and, therefore, this factor weighs in Defendants' favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a § 10(6) application and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., supra).

Defendants do not oppose this application on the basis of the statutory factors of notice, opportunity to investigate or substantial prejudice. Those factors are, therefore, presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; L. F. O'Connell Assocs. v State of New York, 176 Misc 2d 697).

With regard to merit, Claimant maintains that Defendants are strictly liable for her injuries under Labor Law § 240(1) because they failed to provide a safety device that could have prevented her fall from an elevated height while she was repairing the signal light on the canal wall. Defendants take issue with the applicability of Labor Law § 240(1), stating that the work she was performing was not a repair but was merely in the nature of maintenance of the signal light, therefore strict liability does not attach. Further, even if I concluded that Claimant was repairing the signal light when she fell from an elevated height, Defendants assert that the exclusivity provisions of Workers' Compensation Law § 11 prohibit Claimant from suing Defendants for damages.

Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ).

I find that Claimant was performing a repair of a damaged signal light and that her alleged fall and her subsequent injuries relate to her exposure to the risks of an elevated work site and therefore this case falls within the protections of Labor Law § 240(1). I was persuaded by the proof that she had to do more than change a light bulb; she was required to remove and replace a broken lens in addition to the broken light bulb. This is a different situation than the cases sited by Defendants that involved replacing burnt out light bulbs in signs (see e.g. Smith v Shell Oil Co., 85 NY2d 1000). Claimant has succeeded in establishing that the Labor Law § 240(1) cause of action in her proposed claim has the appearance of merit. However, now I must weigh the impact of a potential exclusivity defense on Claimant's motion for permission to file a late claim.

There is no dispute that Claimant was employed by the Canal Corp. at the time of her accident and that she applied for, and received, Workers' Compensation benefits. She now seeks damages from the State of New York and the Thruway Authority. What is not clear to me, at this point in the case, is Claimant's employer's relationship to the Thruway Authority and the State of New York. As noted above, I need not engage in a complete fact-finding in order to determine this motion. Claimant has established the appearance of merit. Although Defendants have raised an intriguing issue regarding the applicability of the Workers' Compensation exclusivity defense, the record is not developed sufficiently for me to make a determination at this time. A motion for summary judgment may be appropriate after discovery and further research.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh in favor of granting Claimant's application to file a claim asserting a violation of Labor Law § 240(1).

Based upon the foregoing it is hereby

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim provided in support of this motion, and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this decision and order is filed.

June 30, 2005
Rochester, New York

Judge of the Court of Claims