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
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.