New York State Court of Claims

New York State Court of Claims

VRETTOS v. THE STATE OF NEW YORK, #2006-030-513, Claim No. 108900, Motion No. M-70985


Synopsis



Case Information

UID:
2006-030-513
Claimant(s):
VASILIOS VRETTOS
Claimant short name:
VRETTOS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108900
Motion number(s):
M-70985
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
LAW OFFICE OF GEORGE POULOS, ESQ.BY: BRIAN J. CARLEY, ESQ
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELLEN MATOWIK, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 9, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion


"for an order pursuant to the Court of Claims Act §10(6) allowing claimant to file a late Notice


of Claim to correct the date of occurrence of Plaintiff's injuries" (sic):

1,2 Notice of Motion, Affirmation by Brian J. Carley, Counsel for Claimant and attachments

  1. Affirmation by Ellen Matowik, Assistant Attorney General
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."

February 9, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims