New York State Court of Claims

New York State Court of Claims

DAVEY v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2006-015-076, Claim No. 111040, Motion No. M-71034


Synopsis


Court found compliance with General Municipal Law § 50-e is not required to commence action in Court of Claims against Olympic Regional Development Authority (ORDA) and denied the motion for late claim relief as unnecessary under the circumstances.

Case Information

UID:
2006-015-076
Claimant(s):
JASON R. DAVEY
Claimant short name:
DAVEY
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111040
Motion number(s):
M-71034
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
The Harding Law Firm
By: Charles R. Harding, Esquire and Rachel A. Rappazzo, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 9, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. Claimant seeks to recover damages for personal injuries sustained while snowboarding at Gore Mountain Ski Center (Gore) located in the Town of North Creek, Warren County. Claimant alleges that on December 27, 2004 at approximately 1:00 p.m. he was snowboarding down the right side of Tannery Trail when he encountered a ditch or large hole into which he fell sustaining injury. It is alleged that the claimant notified Gore personnel of his accident and injury the same day.

A notice of intention to file a claim was served personally upon the President and Chief Executive Officer of the New York State Olympic Regional Development Authority (ORDA) on March 3, 2005 and upon the Attorney General's Office by certified mail, return receipt requested on February 1, 2005[1]. Claimant further alleges that a notice of intention was served upon ORDA by certified mail, return receipt requested on January 31, 2005. These service dates were well within the 90 day period for service of a claim or notice of intention to file a claim prescribed by Court of Claims Act § 10 (3). A verified claim was served upon ORDA by certified mail, return receipt requested on June 20, 2005 and upon the Attorney General's office by certified mail, return receipt requested received on June 21, 2005. Claimant now moves for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e as provided in Public Authorities Law § 2622 (1).

Defendant opposed the motion on the ground that the notice of claimant's fall provided to Gore first aid personnel inadequately identified the area of his fall and that Public Administration [sic] Law § 2644 (1)[2] provides that a notice of claim pursuant to General Municipal Law § 50-e is a condition precedent to the commencement of an action involving ORDA.

Section 2622 of the Public Authorities Law, in relevant part, provides:
1. In any case founded upon tort a notice of claim shall be required as a condition precedent to the commencement of an action or special proceeding against the authority or any officer, appointee or employee thereof, and the provisions of section fifty-e of the general municipal law shall govern the giving of such notice.

* * *

4. Notwithstanding subdivision three of this section, exclusive jurisdiction is hereby conferred upon the court of claims to hear and determine any claim of any person brought hereafter against the authority to recover damages for injuries to property or for personal injury arising out of the operation by the authority of any participating olympic facility owned by the state or of the Gore mountain ski center, in the same manner and to the extent provided and subject to the provisions of the court of claims act with respect to claims against the state, and to make awards and render judgments therefor. The payment of awards and judgments for any such claims brought in the supreme court pursuant to this title or in the court of claims shall be made from appropriations for judgments against the state pursuant to section twenty of the court of claims act.

In Traina v New York State Olympic Regional Dev. Auth., 165 Misc 2d 870, 873 former Judge Bell of this Court, after examining the interplay and inconsistencies between paragraphs (1) and (4) of section 2622 of the Public Authorities Law, determined that "the Legislature did not intend to establish unique - and confusing - hybrid procedures applicable only to claims against ORDA." In a more recent case Presiding Judge Richard E. Sise adopted Judge Bell's reasoning and found that "Claimant is not required to commence an action in this Court against ORDA, by complying with General Municipal Law § 50-e" (Rosen v State of New York, Ct Cl, [Claim No. 106052, Motion No. M-66519, UID #2003-028-570] Sise, J., unreported[3]). The Court sees no reason to depart from the findings of my colleagues in this regard.

Since a verified notice of intention to file a claim was served upon the Attorney General and upon ORDA by certified mail, return receipt requested within 90 days of the accrual of the claim on December 27, 2004 and since a verified claim was served by certified mail, return receipt requested upon both the Attorney General's Office and ORDA and was thereafter filed with the Clerk of the Court within two years of the claim's accrual this action has been properly commenced.

Accordingly, claimant's motion for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e is denied as unnecessary.

March 9, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 7, 2005;
  2. Affidavit of Charles R. Harding sworn to December 7, 2005 with exhibits;
  3. Affirmation of Paul F. Cagino dated December 29, 2005 with exhibits;
  4. Affidavit of Rachel A. Rappazzo sworn to January 3, 2006 with exhibit.

[1].Pursuant to Court of Claims Act § 11 (a) (i) service upon the Attorney General is complete when the notice of intention or claim is received in that office.
[2].The Court assumes that the intended reference was to Public Authorities Law § 2622 (1).
[3].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.