New York State Court of Claims

New York State Court of Claims

NOKIC v. STATE OF NEW YORK, #2009-038-508, Claim No. 115737, Motion Nos. M-75549, CM-75583


Synopsis


Defendant’s motion to dismiss granted, as claim was jurisdictionally defective because it did not state how the injury-producing incident occurred (Court of Claims Act § 11[b]). Cross-motion for permission to file and serve a late claim granted – proposed claim has the appearance of merit and there was no demonstrable prejudice to defendant as a result of the late filing.

Case Information

UID:
2009-038-508
Claimant(s):
EMIR NOKIC
1 1.The Court has sua sponte amended the caption to reflect the State of New York as the only proper party.
Claimant short name:
NOKIC
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper party.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115737
Motion number(s):
M-75549
Cross-motion number(s):
CM-75583
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
THE PERECMAN FIRM, PLLCBy: Rudolf B. Radna, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Stephen Maher, Assistant Attorney General
and Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim seeks compensation for personal injuries, medical expenses and economic losses as the result of injuries allegedly sustained by claimant on June 23, 2008. Defendant moves to dismiss the claim that was filed on August 25, 2008 for failure to adequately plead the claim as required by Court of Claims Act § 11(b). Claimant opposes the motion, and cross-moves pursuant to Court of Claims Act § 10(6) for permission to serve and file a late claim; defendant opposes the cross motion. Court of Claims Act § 11(b) requires that the claim state, among other things, the nature of the claim. This substantive pleading requirement must be strictly construed (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]) and the failure to comply with the pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect requiring dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). While “substantial compliance with section 11 is what is required” (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]), the allegations in the claim must reveal the manner in which the claimant sustained his injuries (see id. at 767-768; see also Czynski v State of New York, 53 AD3d 881, 883 [3d Dept 2008]).

The claim filed on August 25, 2008, alleges that the incident took place at the “Indian Quadrangle Cafeteria of the State University of New York at Albany, 1400 Washington Avenue, Albany, New York,” and it includes the allegation that claimant “suffers from multiple personal injuries. Among those currently known are injuries to the right wrist, right arm, and right elbow including fractures of the right arm/elbow.” The claim alleges that claimant suffered these injuries:

as a result of the negligence, carelessness, recklessness and violations of the Labor Laws of the State of New York, specifically sections 200, 240(1) and 241(6) by and of the defendants and/or their respective agents, servants, and/or employees in the ownership, operation, management, maintenance, control and ownership of the subject premises and the construction, renovation and/or demolition that was taking place thereat. Claimant will also allege that defendants violated the provisions of the Labor Laws enumerated above and of statutes, rules, laws, ordinances, regulations and standards regarding proper and safe construction methods and for the use and maintenance of elevation devices including ladders including 12 N.Y.C.R.R. 23-1.21 and O.S.H.A., 29 CFR 1926.1053, 1910.26 and/or 1910.25. Claimant will claim that the defendants are absolutely liable due to their own acts or failures and/or the acts or failures of Plaintiff’s employer, Nerim Construction, who had been contracted to perform certain construction or renovation work at the location below stated by the defendants and /or their agents, servants or employees.


These “[c]onclusory or general allegations of negligence” (Heisler, at 767-768) and absolute liability are insufficient to comply with Court of Claims Act § 11(b). The claim fails in every respect to plead what happened to claimant. While the Court does not agree with defendant’s assertion that these allegations “do no more than mislead and/or deceive the defendant” (Cagino Affirmation in Support, ¶ 9), there is merit in defendant’s contention that “[t]he claim lacks sufficient factual allegations and leaves it to the defendant to ‘guess’ how this incident occurred” (id.). The references in the claim to Labor Law § 240 permit the inference that claimant either fell from a height or was struck by a falling object (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]), but the claim simply fails to state the manner in which the injury-producing incident occurred.[2] Although the presence of a site monitor at the time of the accident and the actual investigation that was conducted by State University of New York (SUNY) campus police may have allowed defendant to promptly investigate and ascertain its liability, which is the “guiding principle informing [the] section 11 (b) [pleading requirements]” (Lepkowski v State of New York, supra at 207), defendant’s awareness of the accident does not excuse claimant from stating the facts in the claim in compliance with the strict pleading requirements of section 11(b). Accordingly, defendant’s motion to dismiss the claim on jurisdictional grounds must be granted.

Turning to claimant’s cross motion pursuant to Court of Claims Act § 10(6) for permission to serve and file a late claim, this Court must 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” (Court of Claims Act § 10 [6]). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

Reviewing those criteria seriatim, claimant does not proffer any excuse for the delay in timely filing a jurisdictionally sound claim. This factor, therefore, weighs against claimant’s application.

Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Here, defendant concedes, as it must, that it had actual notice of the essential facts underlying the claim and an opportunity to investigate the accident, inasmuch as a SUNY campus police officer responded to the accident and prepared a SUNY Albany Comprehensive Incident Information Summary (see Radna Affirmation in Support of Cross-Motion and in Opposition to Defendant’s Motion to Dismiss Claim, Exhibit 2; Nokic Affidavit, sworn to Sept. 25, 2008, ¶ 4; Maher Affirmation in Opposition to Cross-Motion to File a Late Claim and Reply Affirmation in Support of Motion to Dismiss, ¶ 11; see also Lufker v State of New York, 239 AD2d 565, 565-566 [2d Dept 1997] [report of SUNY campus police provided defendant with actual notice of incident]; Barotti v State of New York, UID # 2007-042-515, Motion No. M-73090, Siegel, J. [June 29, 2007] [claimant notified SUNY campus police and gave a statement regarding the incident]). In light of this actual notice, defendant does not and cannot assert that it will suffer prejudice if claimant is permitted to serve and file a late claim in this matter.

With respect to the merit of the proposed claim, this factor is the most significant consideration because Court of Claims Act § 10(6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on his or her claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10(6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).

Here, defendant contends that the proposed claim is lacking in merit because it does not “connect his accident to defendant” (Maher Affirmation in Opposition to Cross-Motion to File a Late Claim and Reply Affirmation in Support of Motion to Dismiss, ¶ 9). However, the proposed claim clearly asserts that claimant was a construction worker employed by a company with which defendant had contracted to conduct demolition/asbestos removal, and that claimant was injured when he fell from a wobbly and unsecured ladder at a worksite on a SUNY campus. At the very least, these facts sufficiently assert a cause of action against defendant sounding in absolute liability under Labor Law § 240 (see Sanatass v Consolidated Investing Co. Inc., 10 NY3d 333, 338-339 [2008]). Accordingly, the proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10(6).

Finally, claimant does not dispute that he has other available remedies under the Workers’ Compensation Law.

In sum, having considered and weighed all of the factors required by Court of Claims Act § 10(6), and noting in particular that the proposed claim has the appearance of merit and that there is a lack of prejudice flowing to defendant because of the late filing, the Court determines that claimant’s cross motion for permission to file and serve the late claim should be granted. Accordingly, it is

ORDERED, that defendant’s motion No. M-75549 is GRANTED, and Claim No. 115737 is DISMISSED, and it is further

ORDERED, that claimant’s cross motion No. CM-75583 is GRANTED, and it is further

ORDERED, that claimant is directed to file and serve the proposed claim in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, not later than thirty (30) days after the date of filing of this Decision and Order.

January 26, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 115737, filed August 25, 2008

(2) Notice of Motion to Dismiss, dated Sept. 16, 2008;

(3) Affirmation of Paul F. Cagino, AAG, dated Sept. 16, 2008, with Exhibit A;

(4) Notice of Cross-Motion, dated Sept. 25, 2008;

(5) Affirmation of Rudolf B. Radna, Esq., in Support of Cross-Motion and in Opposition to

Defendant’s Motion to Dismiss Claim, dated Sept. 25, 2008, with Exhibits 1-6, including the

Affidavit of Emir Nokic, sworn to Sept. 25, 2008;

(6) Affirmation of Stephen J. Maher, AAG, in Opposition to Cross-Motion to File a Late Claim

and Reply Affirmation in Support of Motion to Dismiss, dated Oct. 8, 2008;

(7) Reply Affirmation of Rudolf B. Radna, Esq. in Further Support of Cross-Motion, dated

Nov. 3, 2008.


[2]. The insufficiency of the factual allegations in the claim is highlighted by the proposed claim that is submitted in support of claimant’s cross motion, which includes the following additional factual allegations: Claimant “was caused to fall due to an unstable ladder, which was unbraced and unsecured which wobbled . . . [and claimant] was caused to fall along with the ladder as he was climbing down a 10 foot tall ‘A’-frame ladder” (Radna Affirmation in Support of Cross-Motion and in Opposition to Defendant’s Motion to Dismiss Claim, Exhibit 4, ¶ 2). The proposed claim further states that “[c]laimant will claim that his fall from the ladder and the fall of the ladder were a result of Labor Law violations and the failure to provide and furnish safe, proper elevating devices including a safer ladder and/or scaffold and/or the failure to hold, brace and secure the ladder” (id.).