New York State Court of Claims

New York State Court of Claims

RELYEA v. THE STATE OF NEW YORK, #2009-040-022, Claim No. NONE, Motion No. M-75831


Motion for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6) granted.

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:
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the application of Movant, Jeanette Relyea, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

The proposed claim, attached to the affirmation of John G. Rusk, Esq., in support of the motion as Exhibit A, asserts that Movant was injured on February 9, 2008 at approximately 10:30 a.m. at Belleayre Mountain Ski Area located in Highmount, New York, on a trail leading to the lift known as Super Chief, in the area of Tower 3, above Lift 6 (proposed claim, ¶ 3). The proposed claim alleges negligent maintenance and operation of the ski center, failure to provide padding to the wood pole/post in the center of the trail, in failing to protect the pole and warn skiers of the pole, and in failing to maintain the premises in a reasonably safe condition (id., ¶ 4).

In her affidavit submitted in support of her motion, Ms. Relyea asserts that, as she was skiing toward the Super Chief lift, a snowboarder made contact with her and, further, that they both struck a large wooden pole “in the center of the slope which had no padding” (Relyea Affidavit, ¶ 8). She further states that she was at the ski area as part of her job with Clear Channel Radio.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim asserts causes of action for negligence (CPLR § 214[5]), a three-year statute of limitations applies and the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – her significant injury and recovery time – is not a reasonable excuse. While Movant underwent surgery, it was performed within 30 days of her accident. Counsel’s affirmation asserts that Movant had surgery on March 4, 2008 (Rusk Affirmation, ¶ 5). Movant then participated in physical therapy sessions and returned to work. The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired May 9, 2008. However, Movant has submitted neither a physician’s affidavit nor hospital records to establish the length of time of her alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why she could not contact counsel and serve a notice of intention to file a claim prior to expiration of the statutory period. However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defense counsel asserts that Defendant had notice of the incident, a reasonable opportunity to inspect and would not be prejudiced by the delay (Affirmation in Opposition of Assistant Attorney General Glenn C. King , ¶ 4). Thus, the Court concludes these factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. In this case, it appears Movant does have a partial alternate remedy, Workers’ Compensation, as it appears she was injured while working.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

In support of the motion, Movant submitted the affidavit, and a report, of John H. Hanst, an alpine skiing expert. Mr. Hanst avers that the State “did not adhere to the series of standards required in the operation of the Belleayre Ski Center” and that these omissions were the cause of Movant’s injuries (Hanst Affidavit, ¶ 8). In particular, Mr. Hanst states that the State failed to have the pole that Movant struck properly marked and padded (id., ¶ 10).

In his report (attached to his affidavit as Ex. A), Mr. Hanst asserts :

The New York State Codes and Regulations contain specific responsibilities that should be observed by the ski area operator. Several of these duties in 54.5 are:
[D] Conspicuously marked with crossed poles or a pole topped with a marker or markers [as specified in Table #1], the location of such man-made obstructions as but not limited to snow making equipment, electrical outlets, timing equipment, stanchions, pipes or storage areas that are within the borders of the designated slope or trail when the top of such obstruction is six feet above the snow level. Such poles shall be entirely blazed orange and shall be maintained at a minimum height of six feet above snow level ...

[J] To, within a reasonable amount of time after the inspection required by the sub division of this section, conspicuously marked with such implements as may be specified by the Commissioner of Labor or remove such obstacles or hazards which are located within the boundaries of any ski slope or trail and were noted pursuant to the paragraph [F] [3] of this section and to also conspicuously mark with such implements or remove such obstacles or hazards when notice is given at sights designated by the ski area operator for such receipt and the locations of which are made known to skiers pursuant to paragraph [E] [3] of this section.

The pictures of this incident location, included within this report, clearly show a trail intersection with a large wooden pole at the apex. This pole has multiple scars from impacts from many different types. The ski area, in violation of all the above stated regulations, left this pole unpadded and directly in harm’s way thus creating the mechanism of injury to Jeanette Relyea.
(Hanst Report, pp. 2-3).

In opposition to the motion, Defendant asserts that Movant has failed to establish that the proposed claim has merit (King Affirmation, ¶ 5). In support of its position, the State has submitted the affidavit of Joseph Strauss, Director of Ski Patrol at Belleayre Mountain for 23 years (Strauss Affidavit, ¶ 1). Mr. Strauss states that the regulation Mr. Hanst refers to as 54.5 is really Title 12, Chapter 1, Subchapter A, Part 54.5, entitled “[r]esponsibilities of ski area operators” (id., ¶ 4). Mr. Strauss avers that Mr. Hanst misquotes and misapplies the regulation. Mr. Strauss states that the cited regulation applies to obstructions which are less than six feet in height and are within the borders of the designated slope or trail (id., ¶ 6). Mr. Strauss asserts that the proposed claim lacks merit for two reasons: (1) the pole in question has never been less than six feet above snow level; and (2) the pole is not within the borders of the slope or trail, but, rather, the object that delineates the border of the trail (id., ¶¶ 8-11).

At this stage of the proceedings, it should be noted the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that, while Mr. Hanst’s reliance upon the cited regulation appears to be misplaced, the opposing affidavits submitted and the Court’s review of the regulation in question indicate that there may be issues of fact regarding the location of the pole in question and whether it needed to be padded pursuant to an unstated standard (Jomarron v State of New York, 23 AD3d 527 [2d Dept 2005]; see Matter of Morales v State of New York, 292 AD2d 455, 456 [2d Dept 2002]). Moreover, as noted above, Mr. Hanst’s opinion asserts that Defendant did not adhere to a series of standards, not just one, which omissions, collectively, he avers to be the cause of Movant’s injuries. The Court, therefore, finds that the proposed claim has the appearance of merit. Movant need only establish the appearance of merit; she need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L. 1976, Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant her leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court her proposed claim against the State, and serve a copy of the proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

February 11, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read on Movant’s application for permission to file a late claim:
Papers Numbered

Notice of Motion,

Affidavit of Movant & Exhibits attached,

Affirmation & Exhibit attached,
Affidavit of Merit & Exhibit attached 1

Affirmation in Opposition
& Exhibits attached 2