New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK, #2007-037-004, Claim No. NONE, Motion No. M-72683


Synopsis


Movant’s motion to late file a claim is denied as Movant’s sole and exclusive remedy is the Workers’ Compensation Law.

Case Information

UID:
2007-037-004
Claimant(s):
TIMOTHY L. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72683
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Timothy P. Frank, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 25, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movant’s motion to late file a claim:

1. Movant’s notice of motion and supporting affidavits of Timothy P. Frank, Esq. sworn

to December 14, 2006, with attached Exhibits, and Timothy L. Smith sworn to December 14, 2006;

2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to

December 27, 2006;

3. Letter from Timothy P. Frank, Esq. dated January 3, 2007, in further support of

Movant’s motion;

4. Supplemental opposing affidavit of Assistant Attorney General William D. Lonergan

sworn to January 5, 2007.

This is a motion seeking leave to late file a “notice of claim.”[1] According to the notice of motion, Movant is inappropriately seeking relief pursuant to General Municipal Law § 50-e (5). A motion for leave to late file a claim against the State of New York is governed by §10 (6) of the Court of Claims Act. However, because Movant has addressed the various factors which this Court must consider when deciding a proper motion to late file a claim, the Court will treat Movant’s motion as if it had been appropriately brought pursuant to § 10 (6) of the Court of Claims Act.

Movant’s unverified “Proposed Notice of Claim”[2] alleges that Movant Timothy L. Smith sustained serious injuries when he fell in an elevator located at Gowanda Correctional Facility (Gowanda) on July 31, 2006. Pursuant to § 10 (3) of the Court of Claims Act, an action against the State of New York for personal injuries must be filed and served on the Attorney General within ninety days of the accrual of the claim, unless a notice of intention to file a claim is served on the Attorney General within the same time period, in which event the claim must be filed and served within two years after the accrual of the claim. Accordingly, this claim was to be filed and served or preserved by the service of a notice of intention within ninety days of July 31, 2006, which Movant failed to do.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of all relevant factors, including: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether substantial prejudice to the State resulted from the failure to timely file and serve on the Attorney General a claim or notice of intention to file a claim; and (6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

Admirably, Movant admits that his ignorance of the necessity of filing and serving his claim within ninety days of its accrual is not a justifiable excuse. Accordingly, this factor weighs against granting Movant’s application.

The three factors of notice, opportunity to investigate and prejudice are inextricably intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant alleges that the State had actual knowledge of this incident as Movant immediately filed an accident report and received treatment at the Gowanda infirmary. While the poor quality of the copy of the incident report attached to Movant’s papers makes the report difficult to read, Defendant does not seriously argue that it did not have notice or the opportunity to investigate. These factors, therefore, weigh in favor of Movant’s application.

Movant alleges that he does not have any other remedies available to him, although a workers’ compensation claim was admittedly filed. The right to receive workers’ compensation benefits may serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036 [1988], lv denied 73 NY2d 710 [1989]), even though it may only be a partial remedy (Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915 [1988]). In addition, although no other action has presumably been commenced, Defendant correctly notes that Movant may have an action in Supreme Court against the manufacturer of the elevator and/or an action against the company which maintains the elevator. This factor thus weighs against granting Movant’s application.

Of the six factors set forth in section 10 (6) of the Court of Claims Act, however, the appearance of merit is often considered the most decisive, as it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). Defendant argues that the Court does not have jurisdiction to hear this claim as Movant’s sole and exclusive remedy is workers’ compensation. The court agrees.

In the proposed claim, Movant asserts a cause of action for common law negligence against the State of New York for failure to properly maintain, repair or replace the elevator at Gowanda in which the Movant was allegedly injured. At the time of this alleged incident, Movant “was in the course of performing his employment duties as a corrections officer at the Gowanda Correctional Facility ... ” (¶ 3, proposed claim).The exclusive remedy available to an employee who is injured in the course of his employment is the Workers’ Compensation Law (see §§ 10, 11 and 29 [6] of the Workers’ Compensation Law). The exclusiveness of this remedy applies to the State of New York as well as to other employers (Maloney v State of New York, 3 NY2d 356 [1957]).

The State of New York waived sovereign immunity by § 8 of the Court of Claims Act. This section, however, explicitly preserved the exclusivity of the Workers’ Compensation Law by providing that nothing in this section “[s]hall be construed to affect, alter or repeal any provision of the [workers’] compensation law.” Movant’s counsel argues in his letter of January 3, 2007, that Articles 7 and 10 of the Labor Law provide exceptions to the exclusivity of the remedy provided by the Workers’ Compensation Law. While there are certain exceptions to the exclusivity of the remedy under the Workers’ Compensation Law itself (see § 29 [6] of the Workers’ Compensation Law), which are not applicable or even alleged herein, the Court is unaware of any such exceptions under the Labor Law, and Movant has failed to designate any (see generally Diaz v Rosbrock Associates Limited Partnership, 188 Misc 2d 159 [2001], affd 298 AD2d 547 [2002]). Moreover, Movant has failed to even allege a Labor Law cause of action in his proposed claim,[3] or to plead that he is exempt from the exclusivity of the Workers’ Compensation Law (see O’Rourke v Long, 41 NY2d 219 [1976]; Corp v State of New York, 257 AD2d 742 [1999]). Consequently, the proposed claim lacks merit as this Court does not have the subject matter jurisdiction to hear the proposed claim as Movant’s sole and exclusive remedy is the Workers’ Compensation Law. Accordingly, it is hereby

ORDERED, that Movant’s motion (M-72683) for leave to late file a claim is denied.



January 25, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. An action is commenced in the Court of Claims by the filing and service of a claim, not a “notice of claim.”
[2]. See footnote #1. Movant’s proposed notice of claim will henceforth be referred to as the proposed claim.
[3]. If Movant intends to allege a cause of action under § 240 of the Labor Law on the basis that the State allegedly failed to provide Movant with safety equipment to prevent his fall (see January 3, 2007 letter of Movant’s counsel), then Movant should be aware that § 240 only applies to workers engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, which activities are not implicated herein.