New York State Court of Claims

New York State Court of Claims

KIRCHER v. THE STATE OF NEW YORK and ROOSEVELT ISLAND OPERATING CORPORATION, #2008-016-054, Claim No. 115402, Motion Nos. M-75174, CM-75383


Synopsis


Claim alleging Labor Law violations and arising from construction accident in the Manhattan terminal of the Roosevelt Island tram was dismissed on the ground that the Court of Claims has no jurisdiction over the Roosevelt Island Operating Corporation; related late claim motion was denied on the same basis.

Case Information

UID:
2008-016-054
Claimant(s):
TIMOTHY KIRCHER
Claimant short name:
KIRCHER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and ROOSEVELT ISLAND OPERATING CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115402
Motion number(s):
M-75174
Cross-motion number(s):
CM-75383
Judge:
Alan C. Marin
Claimant’s attorney:
Hach & Rose, LLPBy: Michael A. Rose, Esq. and Philip S. Abate, Esq.
Defendant’s attorney:
For the State of New York:
Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG

For Roosevelt Island Operating Corporation:
Marshall, Conway, Wright & Bradley, P.C.By: Cristen R. Sommers, Esq.
Third-party defendant’s attorney:

Signature date:
October 1, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Timothy Kircher moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”) or, alternatively to have claim no. 115402 be deemed timely filed nunc pro tunc. Defendant State of New York cross-moves to dismiss. Mr. Kircher asserts violations of the New York State Labor Law. Specifically, he alleges that on January 19, 2008, he fell and was injured while employed by Doppelmayr CTEC, Inc., which had a contract to perform work in the Manhattan terminal of the Roosevelt Island tramway.

Ordinarily, in determining whether to grant 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) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. In this case, however, a more fundamental jurisdictional issue must be addressed.

Claimant does not dispute defendant’s assertion that the Roosevelt Island tram is a facility of the Roosevelt Island Operating Corporation (“RIOC”). See ¶6 of the August 13, 2008 affirmation of Gwendolyn Hatcher and exhibits B and C thereof. The Court of Claims has jurisdiction only over the State of New York and a number of other public entities so specified in statute. But it is undisputed that RIOC is not such an entity. See Unconsolidated Laws, §6385, et seq.

In view of the foregoing, having reviewed the submissions[1], IT IS ORDERED that motion no. M-75174 be denied, that cross-motion no. CM-75383 be granted and that claim no. 115402 be dismissed.


October 1, 2008
New York, New York

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




  1. [1]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through D; the Affirmation in Opposition of the Roosevelt Island Operating Corporation; the notice of cross-motion of the State of New York with annexed affirmation and exhibits A through C; and claimant’s reply affirmation with exhibit A.