New York State Court of Claims

New York State Court of Claims

MARTIN v. STATE OF NEW YORK, #2008-016-044, Claim No. None, Motion No. M-75116


Synopsis


Late claim motion was denied.

Case Information

UID:
2008-016-044
Claimant(s):
ALMANETTE MARTIN
1 1.The caption has been amended to reflect that the sole proper defendant in this case is the State of New York; the Court of Claims has no jurisdiction over “Jude Albano, Employee.”
Claimant short name:
MARTIN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant in this case is the State of New York; the Court of Claims has no jurisdiction over “Jude Albano, Employee.”
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75116
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Almanette Martin, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 14, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Almanette Martin moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In her proposed claim, Ms. Martin alleges that on February 21, 2007, while she was working as a clerk at the New York City Civil Court, Queens County, a co-worker deliberately closed a rolling file cabinet on her toe. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, on the date of the incident, an “Aided Report” was prepared and claimant was given a “Medical Waiver Form” to sign. In addition, on March 2, 2007, claimant provided her supervisor with a memorandum describing the incident. See exhibits A through D to claimant’s moving papers. Defendant does not address these three factors; I find that on balance, they have been met.

As to an alternate remedy, as set forth below, workers’ compensation is the exclusive remedy for an on-the-job injury, although claimant has said that she was not out of work long enough to receive compensation. With regard to excuse, Ms. Martin alleges that she did not realize that she was required to serve and file a claim. Such is not an excuse recognized for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied, 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. Workers’ Compensation is the exclusive remedy for an employee seeking recompense for on-the-job injury (WCL §11); a few limited exceptions to this exclusivity obtain, for example, if an employee is injured by the intentional tort of a co-employee at the direction of their employer. See, e.g., Martinez v Canteen Vending Services Roux Fine Dining Chartwheel, 18 AD3d 274, 795 NYS2d 16 (1st Dept 2005); Hahne v State of New York, 290 AD2d 858, 736 NYS2d 761 (3d Dept 2002). Ms. Martin has not alleged that the actions of her co-worker were “directed or instigated” by their employer. Martinez, supra, 18 AD3d at 275, 795 NYS2d at 18. In view of the foregoing, I cannot find that claimant meets the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

In view of the foregoing, having reviewed the parties’ submissions[3], IT IS ORDERED that motion no. M-75116 be denied.

August 14, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



  1. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [3]The following were reviewed: claimant’s notice of motion with affidavit in support, exhibits A through L and proposed claim; and defendant’s affirmation in opposition.