New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-042-517, Claim No. NONE, Motion No. M-74847


This is a motion brought by claimants to renew and reargue based upon newly discovered evidence, and based upon the position that the Court overlooked and did not apply relevant portions of the verified petition in reaching its decision. The Courts denies claimants’ motion to renew and the Court denies claimants’ motion to reargue.

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:
July 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)

On March 12, 2008 this court issued a decision, filed March 14, 2008, denying claimants permission to file a late claim. Claimants now move to renew based upon newly discovered evidence, and to reargue based upon the position that the Court overlooked and did not apply relevant portions of the verified petition in reaching its decision. The Court considered the following papers:
1. Notice of Motion, filed April 16, 2008
2. Affirmation of Dom Cambareri, Esq., dated April 14, 2008
3. Exhibits A - E, annexed to the moving papers
4. Opposition affirmation of Gerald D. D’Amelia, Jr., Esq., dated May 27, 2008


The defendant opposes the motion, arguing that the newly discovered evidence is not dispositive, as consideration of the relevant factors still does not favor the claimants, and that the court has not overlooked relevant portions of the petition.

Claimant David M. Smith was allegedly injured in a construction site accident at the Central New York Psychiatric Center on May 22, 2007. At the time, he was a sheet metal journeyman employed by Postler & Jaekel. At the time of this court’s original decision, it was alleged that claimant’s employer was a subcontractor at the site. In support of the original motion, claimant stated that he was unaware of the identity of the general contractor, Murnane Building Contractors, Inc., until on or about August 29, 2007.

In the original decision, the court considered all of the statutory factors relevant to a determination as to whether to grant permission to late file: excusable delay, notice, opportunity to investigate, prejudice, meritorious claim, and alternative remedy (Court of Claims Act § 10 [6]). The court found that five of the six factors failed to favor the claimants. In determining that the “alternative remedy” factor did not favor the claimant[1], the court noted that “[c]laimant has a claim for Workers’ Compensation and the possibility of a parallel action against the general contractor in Supreme Court.”

Claimant’s counsel now states that at the time of the original motion, limited investigation had been conducted and it was assumed that Murnane Building Contractors was the general contractor at the work site where claimant was injured. On or about March 25, 2008 claimant’s counsel commenced an action in Supreme Court against Murnane Building Contractors, Inc. In response to that suit, an affidavit, sworn to April 4, 2008, from an officer of the company, James R. Hogel, was provided. It stated that the contract for the project with the Dormitory Authority of the State of New York was divided into four sets of prime contracts, one of which was with Murnane Building Contractors, Inc. and another one of which was with claimant’s employer, Postler & Jaekel. As a result, the Supreme Court action against Murnane Building Contractors, Inc. was discontinued.

It is claimant’s position that this newly discovered evidence that there is no potential general contractor subject to a claim for injuries in this accident leaves claimant with only the “partial alternate remedy” of Workers’ Compensation, and that on this basis, the court should reverse its prior decision denying the motion for leave to late file.

Defendant opposes the motion on this ground, arguing that its position on the original motion is still valid now. That is, that the alternate remedy provided by Workers’ Compensation was a sufficient basis upon which to find that the factor of the availability of an alternative remedy did not favor claimant.

The fact that claimant may have only a “partial alternative remedy” does not tilt this factor in favor of the claimant. It is well established that “the right to receive Workers’ Compensation benefits can serve as an available remedy (Nicometti v State of New York, 144 AD2d 1036, lv denied 73 NY2d 710), even though it may be a partial remedy” (Lostracco v State of New York, UID No. 2002-031-064, Motion No. M-65272, December 12, 2002, Minarik, J.; Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915, 916; Jerrett v State of New York, 166 AD2d 907).

Insofar as claimant seeks leave to renew, based upon newly discovered evidence, this motion is denied.

As noted above, claimant also moves to reargue. It is claimant’s position that the court did not adequately credit the extent of claimant’s injury in its consideration of whether the delay in filing was excusable. Claimant asserts that he did not initiate contact with the representatives of the State Insurance Fund, but rather that they initiated contact. Nevertheless, this does not change the fact that claimant was able to attend to regular medical appointments, so presumably could travel. As defendant also notes, claimant does not allege that he was not ambulatory or had no access to a telephone (Malek v State of New York, 92 AD2d 659). Furthermore, the argument by claimant that no contact was initiated by him to obtain even Workers’ Compensation benefits suggests that despite the lack of medical proof that a shoulder/arm injury was too physically or mentally debilitating to allow for even telephone contact with an attorney or to initiate any meaningful effort to make known to others a claim for injury, claimant really took no steps towards making any claim in the ninety days following the alleged accident. This argument undermines, rather than benefits, claimant’s position.

Nothing offered on claimant’s behalf on this motion relative to the factors of notice, opportunity to investigate and prejudice changes the facts or conclusions drawn by the court in its original decision. There remains no evidence offered that the accident was witnessed; counsel merely points out that co-workers in the area came to claimant’s assistance after his fall. Likewise, notice to co-workers or claimant’s employer is not proof of notice to the defendant or to a lack of prejudice.

Insofar as claimant seeks leave to reargue, based upon the court’s misapprehension of the relevant facts in rendering its original decision denying leave to late file a claim, this motion is denied.

In sum, claimant’s motion is denied in its entirety.

July 9, 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.