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.
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
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’
, IT IS ORDERED that motion no.
M-75116 be denied.