New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-042-501, Claim No. NONE, Motion No. M-73976


This motion is brought by the claimants for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The court finds that the claimant failed to sufficiently meet the statutory criteria for the late filing of a claim and therefore the motion is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
March 12, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This matter comes before the court on a motion by claimants for permission to file a late claim, pursuant to Court of Claims Act § 10 (6). The court has considered the following papers:
  1. Notice of Motion, filed September 17, 2007
  2. Petition of David M. Smith, verified September 14, 2007 together with exhibits annexed thereto
  3. Affirmation of Dom Cambareri, Esq., dated September 14, 2007
  4. Opposition affirmation of Gerald D. D'Amelia, Jr., Esq., dated November 28, 2007

Claimant David M. Smith[1] alleges that on or about May 22, 2007 he was injured in a construction site accident, which occurred at a building on the campus of defendant’s Central New York Psychiatric Center. Claimant states that he was a sheet metal journeyman employed by Postler & Jaekel, a subcontractor on the building project. Claimant further states that he was unaware of the identity of the general contractor, Murnane Building Contractors, Inc., until on or about August 29, 2007.

Claimant alleges that on May 22, 2007 while working at the construction site, he was standing on the second rung from the top of an eight foot “A-frame” ladder positioned parallel to the wall. He apparently was working on duct work on the ceiling above him, when a screw fell out of his drill chuck, causing him to become unbalanced, thus “causing the ladder to jerk to the side”. The ladder tipped over, causing claimant to fall as well. Claimant understands his injuries from the fall to be a right shoulder dislocation, right elbow injury, right wrist sprain and a torn rotator cuff, for which he had a surgical repair in August 2007. He alleges that he has been totally disabled from work since May 23, 2007.

Claimant states that he had no idea that the New York State Office of Mental Health or any other state agency was the reputed owner of the facility where the accident occurred until he met with his attorney on August 28, 2007. He says that during the first ninety days following the accident he was unaware that he had a possible cause of action against the owner and/or general contractor. Nor was he aware of any relationship between his employer and the owner or general contractor.

Claimant has no knowledge of whether his employer - who was notified of the accident - notified the state or any of its agencies about the accident, though he argues that the state has had ample time in which it could have contacted claimant’s employer and initiated an investigation. Claimant and his counsel assume that the state and/or its appropriate agency would have had some sort of “engineer in charge” and/or on site inspectors at the project, who presumably would have received notice of the accident and had the opportunity to investigate.

Claimant argues that his application for permission to file a late claim was itself filed within four weeks of the expiration of the ninety day filing period and that the application is made well within the time limit for filing such claims set forth in Court of Claims Act § 10 (3). Furthermore, claimant asserts that he has meritorious causes of action under Labor Law § 240 (1), Labor Law § 241 (6) and Labor Law § 200 (1). Claimant cites numerous and specific violations of the Industrial Code in support of the proposed Labor Law § 241 (6) cause of action.

Claimant’s counsel does acknowledge that an alternative remedy, in addition to Workers Compensation, exists in favor of claimant by way of a potential parallel right of action in Supreme Court against Murnane Building Contractors, Inc., the general contractor.

Defendant opposes the motion and argues that claimant does not meet the statutory criteria for late filing. Defendant contends that claimant’s ignorance of the owner’s identity is not an adequate excuse where there is no showing that he made any effort to even investigate the identity of the owner in the months immediately following the accident.

Furthermore defendant asserts that there is no showing that the state had any actual notice of the accident or opportunity to investigate. And, thus, the defendant is prejudiced by its lack of opportunity to timely investigate the occurrence.

The defendant argues that the facts surrounding the claimant’s fall militate against a finding of a meritorious cause of action. Defendant argues that claimant’s affidavit fails to show any negligence on the part of the defendant or defect in the ladder. Rather, claimant’s fall occurred, not because of the ladder failing or moving, but rather because claimant himself became unbalanced when the screw fell from the drill chuck.

Lastly defendant argues that claimant does in fact have alternative remedies, through a cause of action directly against the general contractor, and through Workers’ Compensation.

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . ., the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.

The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, P.J.

Claimant’s proffered excuse is that prior to the expiration of ninety days following his fall no one had informed him of the relationship between his employer, the general contractor or the state. It is implicit in his explanation that one is to conclude that he had no idea as to the owner of the accident site or that he might have a legal cause of action against the owner and a time limitation within which to make such claim. As to the first conclusion, it strains credulity; as to the second conclusion, ignorance of the law does not excuse a failure to comply with statutory requirements (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Matter of E.K. v State of New York, 235 AD2d 540, lv denied 89 NY2d 815).

Claimant also offers the excuse that the injuries to his right arm and shoulder precluded his investigation involving any other parties to the accident, though he did file a Workers’ Compensation claim and apparently contacted representatives of the State Insurance Fund. These excuses are not reasonable (Montayne v State of New York, UID No. 2005-015-026, Claim No. NONE, Motion No. M-69822, June 23, 2005, Collins, J.)

The delay, though minimal, is not excusable.

There is no evidence whatsoever that the defendant had timely knowledge of the incident or any opportunity to investigate the accident. Rather, claimant relies solely upon supposition and conjecture to support the conclusion that the state must have known about the incident and therefore would have had opportunity to investigate and sustained no prejudice.

In the absence of notice and opportunity to timely investigate, the state is prejudiced under the facts of the incident. As defense counsel points out, it appears that the incident was unwitnessed, there’s no evidence that the ladder was preserved for investigation or could be identified. Furthermore, the site of the accident presumably has been altered by the ongoing construction project.

A consideration of these three factors does not favor the claimant.

This factor is the most troubling to the court, and is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject it to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).

The proposed claim describes the occurrence as follows:

I was standing on the second rung from the top of an eight (8) foot, A-frame fiberglass ladder, which was positioned in a parallel fashion against a wall . . . Above my head at a height of approximately 9.5 feet, was some newly installed sheet metal duct work . . . and I was using a drill with metallic screws to connect the hanger straps with the previously installed sheet metal duct work.

. . . As I was working, suddenly, and without warning, a screw fell

out of the drill chuck, causing my body to become unbalanced and

causing the ladder to jerk to the side. The ladder suddenly began to

tip over. The ladder then fell away from the adjacent wall and fell

to the ground. As the ladder fell, I fell with the ladder as well, and

landed on top of the ladder as it hit the ground.

The claim does not describe any malfunction, defect, damage to, or other problem with the ladder. Neither does the description of the incident suggest that the ladder failed to perform its function. Rather, it appears obvious that claimant himself triggered his fall when he moved in response to the falling screw. While claimant alleges violations of numerous provisions of the Labor Law, the New York State Industrial Code, and federal OSHA safety regulations, those provisions, by and large, assume the showing of a defect in the ladder or its placement. However, the claimant makes no such factual allegations in the claim.

Based upon the facts as alleged in the claim, it would appear likely that claimant’s only meritorious allegation of negligence might be that the ladder was improperly placed. Since “[a] movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists” (Papetti v State of New York, UID No. 2005-033-154, Claim No. NONE, Motion No. M-70315, December 16, 2005, Lack, J.), at the very least, there is reasonable cause to believe that a claim exists on this basis, if not others. Thus, the court finds that this factor favors the claimant.

As defendant argues and claimant acknowledges, in this case claimant has two alternative remedies. Claimant has a claim for Workers’ Compensation and the possibility of a parallel action against the general contractor in Supreme Court. As a result, I find that this factor does not favor claimant.

The findings in this decision relative to the statutory factors enumerated in Court of Claims Act § 10 (6) are almost identical to the findings made by the Appellate Division, Fourth Department, in Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915, where the Appellate Division found that the lower court had improperly granted claimant’s application for permission to file a late claim.

Having weighed all of the statutory factors, the court finds that the claimant has failed to meet the statutory criteria for the late filing of a claim (see, Jerrett v State of New York, 166 AD2d 907). Accordingly, claimant’s motion for permission to serve and file a late claim is hereby denied.

March 12, 2008
Utica, New York

Judge of the Court of Claims

[1].Since claimant David M. Smith is the injured claimant and Kristine L. Smith’s claim is derivative, the claimants will be referred to in the singular.