New York State Court of Claims

New York State Court of Claims

RELF v. THE STATE OF NEW YORK, #2009-029-025, Claim No. 116233, Motion Nos. M-76209, M-76219


Synopsis


Late filing motion granted in claim based on slip-and-fall accident on wet stairs in building leased by defendant. All six statutory factors favor granting motion.

Case Information

UID:
2009-029-025
Claimant(s):
MICHAEL RELF and DEVIN RELF
Claimant short name:
RELF
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116233
Motion number(s):
M-76209, M-76219
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
FINKELSTEIN & PARTNERSBy: Andrew L. Spitz, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jeane L. Strickland-Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 24, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order dismissing the claim for lack of jurisdiction arising from claimants’ failure to properly interpose a claim within the time constraints of Court of Claims Act § 10(3), and claimants move for an order granting permission to late file pursuant to § 10(6).

The claim arose on June 10, 2008 when Michael Relf (hereinafter “claimant”), a correction officer employed by defendant, slipped on wet steps located in a building in Dover Plains, formerly part of Harlem Valley Psychiatric Hospital, that was being used to house correction officers. The allegations of negligence center around the lack of emergency lighting in the building (there was no electrical power at the time due to a storm) and the lack of mats on the marble stairs where claimant fell.

Claimants retained counsel about two months after the incident. Initial investigation showed that the premises were owned by a private company and were maintained by the Town of Dover, however counsel soon learned that inmates from a state correctional facility had performed some maintenance work on the building and, suspecting state involvement, claimants served a notice of intention to file a claim on the Attorney General on September 24, 2008, 106 days after accrual of the claim.

On December 15, 2008, claimants learned via a response to a Freedom of Information Law request that the State of New York was the tenant in possession of the subject premises pursuant to a lease between TP Enterprises LLC and the Office of General Services. The instant claim was served and filed on December 22, 2008. In addition to opposing claimants’ motion, defendant moves to dismiss the filed claim on jurisdictional grounds.

As claimants concede, defendant’s motion to dismiss has obvious merit and must be granted.

As to claimants’ motion, Court of Claims Act § 10(6) grants the court permission to allow the filing of a late claim upon consideration of all relevant factors, including whether claimants’ delay was excusable, whether defendant had timely notice of and the opportunity to investigate the essential facts, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

It appears that claimants acted expeditiously to ascertain the party responsible for the maintenance of the subject premises and the court cannot fault them or their counsel for not ascertaining that defendant was the leaseholder of the building until after the expiration of the statutory 90-day period. Indeed, once state involvement was suspected, but not yet confirmed, claimants served a notice of intention even though they knew that such notice was untimely.

As to the notice, opportunity to investigate and lack of prejudice factors, in addition to the service of the notice of intention 16 days after expiration of the statutory period, claimant advised the Director of Personnel at Green Haven of the accident the day after it occurred. The submitted exhibits confirm that defendant investigated the incident in response to that report and determined that claimant was not covered by workers’ compensation because he was not injured during the course of his employment because residence at the former Harlem Valley facility is merely an optional benefit offered to officers as a convenience. Nevertheless, an employee accident report was completed and a medical examination was conducted with respect to claimant’s fitness to return to work. It is clear that defendant had timely notice of the incident, had not only the opportunity to investigate but did in fact investigate and would suffer no prejudice should late filing be allowed.

There is no indication that the initial determination that the accident is not covered by workers’ compensation was in error or that claimant has any alternate remedy. Given that claimant’s factual allegations are taken as true for purposes of this motion, and given the minimal delay and complete lack of prejudice, the court finds that the proposed claim has the appearance of merit and that the application for permission to late file should be granted (Jomarron v State of New York, 23 AD3d 527; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Accordingly, both motions are granted. Claim No. 116233 is dismissed for lack of jurisdiction. Claimants are granted permission to serve and file a new claim, identical to the previously-filed claim, in accordance with all of the provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims relative to service and filing of claims, including payment of the filing fee, within 30 days of the filing date of this decision and order.


April 24, 2009
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims


Papers considered:


Notice of Motion (M-76209), Affirmation, Affidavit and Exhibits

Affirmation in Opposition and Exhibits

Reply Affirmation

Notice of Motion (M-76219) Affirmation and Exhibits

Affirmation in Opposition and Supplemental Affirmation and Exhibit