New York State Court of Claims

New York State Court of Claims

GRAHAM v. STATE OF NEW YORK, #2006-013-025, , Motion No. M-71177


Permission to file a late claim is denied. Claimant failed to demonstrate a reasonable excuse, timely notice of the essential facts, the opportunity to investigate, or particularly, the meritoriousness of the proposed claim, as he did not supply any documentation or supportive medical affidavit attesting to the purported bacterial contamination of the water at the work site eyewash station.

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:
Third-party defendant’'s attorney:

Signature date:
May 23, 2006

Official citation:

Appellate results:
Affirmed, 45 AD3d 1391
See also (multicaptioned case)


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[3]. 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, J.),[1] 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 York (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 denied.

May 23, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]
    Decisions and selected orders of the New York State Court of Claims are available on the Internet at