SMITH v. THE STATE OF NEW YORK, #2008-042-501, Claim No. NONE, Motion No.
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.
DAVID M. SMITH & KRISTINE L. SMITH
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NORMAN I. SIEGEL
CAMBARERI & CAMBARERI, L.L.P.By: DOM CAMBARERI, ESQ.
BURKE, SCOLAMIERO, MORTATI & HURD,
LLPBy: GERALD D. D’AMELIA, JR., ESQ.
March 12, 2008
See also (multicaptioned
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:
Notice of Motion, filed September 17, 2007
Petition of David M. Smith, verified September 14, 2007 together with exhibits
Affirmation of Dom Cambareri, Esq., dated September 14, 2007
Opposition affirmation of Gerald D. D'Amelia, Jr., Esq., dated November 28,
Claimant David M. Smith
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,
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
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
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
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
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,
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.
NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
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
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
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
March 12, 2008
HON. NORMAN I. SIEGEL
Judge of the Court of Claims
.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.