On April 19, 2006, the following papers were read on motion by Claimant for
permission to file a late claim:
Notice of Motion, Affidavits, Supplemental Affidavit and Exhibits
Opposing Affidavits and Exhibits
Upon the foregoing papers, this motion is denied.
This is a motion for permission to file a late claim pursuant to Court of
Claims Act §10(6). The underlying incident in question here occurred at
about 2:00 p.m. on or about July 31, 2005, when Claimant was injured in an
incident that occurred on a bridge overpass in Monroe County.
The proposed “"Notice of Claim”" [sic - should be
“"claim”"] alleges the State’'s negligence and a violation of
Labor Law §241(6) and the New York State Industrial Code. While not
recited in the proposed claim, Claimant’'s affidavit specifies an alleged
violation of 12 NYCRR 23-1.9(d), and counsel avers that the Defendant
“"did not have available to Mr. Graham either fresh running water or fresh
stored water for washing facilities as required by §23-1.9(d).”"
Counsel also avers, apparently on personal knowledge, that the water source on
the job site “"was polluted and/or contained bacterial contaminants which
caused serious and ongoing injuries to Mr. Graham’'s left and right
eyes.”" Since the proposed claim sounds in negligence, and the motion
seeking this relief was filed on January 11, 2006, it satisfies the prerequisite
of Section 10(6) that the late claim motion be brought within the time
constraints of CPLR article 2. The proposed claim, which reads more like a
notice of claim under the General Municipal Law than a claim in this Court, does
not contain an ad damnum, a missing element but not a fatal flaw
(see Kolnacki v State of New York, _____ AD3d _____; 2006 WL
1125241). It also was not verified.
The initial moving papers were supplemented by affidavits from counsel and
Claimant. Claimant’'s affidavit provides some factual underpinning to
the proposed claim, and, in the absence of verification, the sworn statement of
someone with personal knowledge of the allegations. Claimant was an employee of
Atlas Painting and Sheeting (Atlas), a contractor for the Defendant for the
painting and restoration of a bridge overpass on Route 590 over Route 104. He
alleges that on July 31, 2005: (1) he “"was caused to get rust and metal
debris in my eyes while I was grinding rust from underneath the bridge
surface”"; (2) he attempted to wash his eye out “"by utilizing water
from the only available water source on the job, a hand washing station,”"
and (3) from what he has “"learned from [his] doctor, the water in the
hand washing station was polluted and contained bacteria which caused serious
infections to both of [his] eyes.”" Claimant references some four
conversations he had during the week following the incident with
“"Dave,”" purportedly an inspector for the Defendant.
“"Dave”" apparently was informed of how Claimant was injured and
Claimant was advised to “"seek medical care and have [his] eye looked at
if it did not get better.”" Claimant describes one other conversation
about the incident that week with one “"Mike,”" also purportedly an
inspector for New York State.
Court of Claims Act §10(6) notes that in determining whether to exercise
my discretion to permit the filing of a late claim, I should consider, among
other 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.”"
Claimant has addressed each of these factors. His excuse relies upon the
assertion that another law firm, which prosecuted a Workers’' Compensation
claim on his behalf, did not pursue an action in the Court of Claims within 90
days of the incident. This implies that his Workers’' Compensation
counsel was remiss in failing to serve a notice of intention to file a claim or
serve and file a claim within 90 days, as required by Court of Claims Act
§10. Regardless of whether this might be characterized as law office
failure, attorney neglect or ignorance of the law, no reasonable excuse for the
failure to have timely pursued this incident in the Court of Claims has been
proffered (see, e.g. Sessa v State of New York, 88 Misc 2d 454,
459, affd 63 AD2d 334, affd 47 NY2d 976). Regardless, the failure
to satisfy all six statutory criteria is not fatal (Bay Terrace Coop. Section
IV v New York State Employees’' Retirement Sys. Policemen’'s and
Firemen’'s Retirement Sys., 55 NY2d 979).
The next two factors, timely notice of the essential facts constituting the
claim and whether the State had an opportunity to investigate the circumstances
underlying the claim, may be considered together. The issue of notice is
vigorously contested. Claimant urges three methods by which the State received
timely notice: his Workers’' Compensation claim, and his
“"conversations”" with each of the two state inspectors,
“"Dave”" and “"Mike.”" I address all three.
Claimant argues that the filing of a Workers’' Compensation C-3 Form
with New York State on September 30, 2005, some 60 days after the incident and
within the 90-day window of Section 10(3), provided both notice and an
opportunity to investigate. The failure to have included a copy of the form
with this motion certainly does little to support the contention that it
provided notice. One might argue that notice of a work-related injury that
might be subject to Workers’' Compensation benefits is somewhat different
than notice of a claim implicating culpable conduct by the State. Without a
copy of the C-3 form, it is not possible to know what information was
transmitted, and it therefore cannot be relied upon to demonstrate notice of the
essential facts constituting the claim. Indeed, the proposed claim sounds in
violation of the Labor Law and New York State Industrial Code §23-1.9(d)
regarding the putative contamination of the water at the washing station, but it
pointedly does not address the underlying incident where he “"was caused
to get rust and metal debris”" in his eyes.
This matter is easily contrasted from the decision of now Presiding Judge
Richard E. Sise in Diamond v State of New York
, (Ct Cl, UID
#2004-028-514, Motion No. M-67499, March 11, 2004, Sise,
where there was a written notification of
a work zone accident and an accident report appended to the application, both
dated the day of the accident, and a supervisor's investigation report which
contained many of the factual particulars necessary to investigate this accident
and at least one of the forms was submitted to those defendants. Judge Thomas
H. Scuccimarra, in Marino v State of New York
(Ct Cl, UID #2005-030-526,
Motion No. M-69705, May 3, 2005, Scuccimarra, J.) denied a late claim
application after considering whether “"notice may be inferred if the
occurrence would be noted and investigated in the normal course, it cannot be
assumed the State had actual knowledge of the facts giving rise to the claim
merely because it owns and maintains a correctional facility, or because a
report of an incident was filed,”" citing Turner v State of New
(40 AD2d 923 [3d Dept 1972] [not enough that State maintains the
facility]) and two claims where permission to late file was granted, Wolf v
State of New York
(140 AD2d 692 [accident report filed and State employee
involved in accident]) and Carmen v State of New York
(49 AD2d 965, 966
[police accident report and internal memoranda filed]).
Addressing the two purported state inspectors, the Defendant provides the
affidavit of Michael Casacci, a construction inspector employed by the Defendant
at the time and place of the incident in question. Mr. Casacci’'s
averments are undisputed. He asserts under oath that he never received any
notice of the incident described in the proposed claim until this motion was
served, and he specifically avers in Paragraph 7 of his affidavit that Claimant
“"never personally advised me of any accident or incident involving his
eyes [and] never complained to me about an eye injury.”"
Mr. Casacci provides a copy of his Inspector’'s Daily Report for July 31,
2005 as Exhibit B to his affidavit, which contains no mention of Claimant or
this alleged incident. He also avers that he was never advised by any other
individual. Given Claimant’'s assertions, it would appear that Mr.
Casacci is the state inspector named “"Mike”" and he directly
disputes any assertions of notice. Moreover, in the absence of any further
identification of the other State inspector named “"Dave,”" the
silence of the Inspector’'s Daily Report for July 31, 2005, the absence
of any written notation about any accident with respect to Claimant on any other
daily report, and the denial of notification by Mr. Casacci of any notice
provided by any other individual, I find that Claimant has failed to demonstrate
that timely notice of the essential facts was given to the Defendant by his
purported verbal reports to “"Dave”" or “"Mike.”" In
the absence of timely notice, the State was not given a timely opportunity to
investigate. These factors weigh against Claimant’'s application.
As to an alternate remedy, Claimant has apparently sought one under the
Workers' Compensation Law, but that is only a partial remedy (Rosenhack v
State of New York, 112 Misc 2d 967, 969; Matter of Garguiolo v New York
State Thruway Auth., 145 AD2d 915) and would not provide full compensation.
As such, this factor weighs somewhat to Claimant’'s benefit.
The issue of whether granting this application would cause substantial
prejudice is an interesting one. Counsel for Defendant avers that
Claimant’'s employer, Atlas, had completed its work on or before August
30, 2005. Moreover, undisputed by Claimant, Atlas was required to provide the
first aid and eye washing facilities and equipment (see ¶ 4 of the Casacci
affidavit and a copy of the Safety Program attached thereto as Exhibit A).
Since the eyewash station apparatus presumably no longer existed as of August
30, 2005, even a claim, timely filed and served by October 31, 2005, would have
placed the Defendant in a position where investigating the eyewash station and
the water itself would have been difficult if not impossible, and some prejudice
would have ensued. Since that prejudice would have existed irrespective of
whether this late claim application is granted, it cannot be said that granting
this application would in and of itself cause any greater degree of prejudice.
Accordingly, this factor too devolves to Claimant’'s benefit.
The last and most significant factor is whether the proposed claim has the
appearance of meritoriousness. Generally, a claimant need only establish
that the proposed claim is not patently groundless, frivolous or legally
defective and there is reasonable cause to believe that a valid cause of action
exists (see Matter of Santana v New York State Thruway Auth., 92
Misc 2d 1).
Claimant’'s supporting affidavit is somewhat confusing in that he
describes the injury as affecting both eyes on three occasions and just one eye
on three other occasions. Moreover, conspicuously absent from the moving papers
is the date upon which Claimant visited his doctor and learned of the purported
contamination of the water in the washing station, or any statement or affidavit
from that doctor in support. These omissions are particularly troublesome when
considering merit, because I am left to speculate when and how the doctor was
able to conclude that the alleged eye infection was caused by ostensibly
contaminated water. The hearsay representations by Claimant that a doctor
concluded that an eye infection was proximately caused by this water, and
repeated by counsel apparently on direct knowledge, fall short of the standards
articulated in Santana, supra (cf. Nyberg v State of New
York, 154 Misc 2d 199).
Also troubling is phraseology that Claimant “"was caused to get”"
rust and metal debris in his eyes while grinding rust, which implies a vague and
conspicuously silent causation of the initial injury. While I realize that the
proposed claim only addresses the Defendant’'s liability based upon the
alleged violation of the industrial code and the availability of clean water,
and not the underlying incident per se, use of the passive tense is somewhat
mysterious, and detracts from Claimant’'s application.
Most troubling to me is Claimant’'s lay assertion regarding the
purportedly contaminated water supply, an assertion that is specifically and
factually refuted by the State’'s inspector, Mr. Casacci. The issue of
meritoriousness is quite equivocal, and the absence of any documentary evidence
or affidavit in support of someone with knowledge other than Claimant lead me to
the conclusion that the proposed claim does not bear the appearance of
meritoriousness, and it would be an exercise in futility to grant this
application (Savino v State of New York, 199 AD2d 254; Prusack v State
of New York, 117 AD2d 729).
In sum, after considering all of the statutory factors, I decline to exercise
my discretion to allow this late claim to be filed, and the motion is