4,5 Filed papers: Claim, Answer
Vasilios Vrettos alleges in Claim number 108900 that on September 16, 2003 he
was seriously injured in a fall from a scaffold on which he was working at a
construction site owned, operated and controlled by the State of New York. A
Notice of Intention to file a claim [see Affirmation by Brian J. Carley,
¶7, Exhibit 1], was served on the Attorney General's Office on October 16,
2003, well within the ninety (90) day time limitation for such service in a
personal injury action. See Court of Claims Act §10(3). The Claim
itself was served on February 6, 2004 and filed on February 13, 2004.
In the Claim, Defendant's liability is premised upon alleged violations of
Labor Law §§200, 240, 240-a and 241(6). Issue was joined by service of
the Answer on March 11, 2004. In its Answer, in addition to general denials,
Defendant asserts eight (8) affirmative defenses. During the course of
discovery, Counsel for Claimant realized he had misstated the date of the
incident as September 16, 2003, when the incident actually occurred one day
earlier on September 15, 2003. Counsel indicates that he relied on
"defendant's own incident report and because the exact date was difficult to
obtain from the client himself, a Greek speaking claimant who was seriously
injured and incapacitated at the time of the filing." [Affirmation by Brian J.
Carley, ¶9]. Before Claimant's deposition on September 20, 2005, counsel
received hospital records showing the date of admission as September 15, 2003.
[Ibid. ¶10, Exhibit 4]. Additionally, incident reports or
investigation reports generated from the incident and produced by defendant
during discovery show handwritten corrections to the reports from September 16,
2003 to September 15, 2003. [Ibid. ¶10, Exhibit 5].
Claimant now moves for permission to serve and file a late claim, rather than
applying to correct or amend his pleading, or entering into a stipulation to
correct the pleading. In an analogously elliptical approach, the Defendant
"takes no position in regard to claimant's motion, leaving to the Court's
discretion the application of law and the legal issues contained therein."
[Affirmation by Ellen Matowik, Assistant Attorney General, ¶2].
While the Court would be constrained to deny Claimant's motion for late claim
relief since it is not really what he is seeking, the Court nonetheless will
grant the motion as one to amend his pleading in keeping with the Court's
inherent power to conform pleadings to proof [See generally Civil
Practice Law and Rules §3025(c)], and finds that the date of the incident
indicated in paragraph "3" of the Claim as September 16, 2003, and referred to
throughout the claim by the same date, is misstated. From the context, the
other papers and discovery herein, it is evident that the foregoing date was
written in error and there is no prejudice or real opposition to appropriate
relief herein. Wherefore, it is hereby
ORDERED, that paragraph "3" of the claim, and references throughout the claim
stemming from the date of the incident, hereby is and are, amended to read
"September 15, 2003."