New York State Court of Claims

New York State Court of Claims

HOMER v. THE STATE OF NEW YORK, #2009-045-018, Claim No. None, Motion No. M-76647


Late claim motion, labor law sections and violations not cited, denied w/o prejudice

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:
Eric H. Green, Esq.By: Marc Gertler, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation in Support with annexed Exhibits, Defendant’s Affirmation in Opposition and Claimant’s Reply Affirmation. Claimant, Aaron Homer, has brought this motion seeking an order “deeming Claimant’s Notice of Claim as timely filed Nunc pro Tunc.” It is axiomatic that the Court of Claims Act does not provide for the filing of a “Notice of Claim.” However, in the body of claimant’s motion papers claimant properly cites to Court of Claims Act (CCA) § 10(6) which provides for claimant’s ability to seek an order granting permission to file a late claim in this matter. Defendant, the State of New York, has opposed claimant’s motion as an application requesting permission to file a late claim pursuant to CCA § 10(6). Thus, the Court treated claimant’s motion as if it was a properly titled motion to file a late claim.

Claimant’s error regarding the notice of claim is compounded by his failure to properly delineate the papers attached to his motion as separate exhibits with corresponding designations. The first document attached to claimant’s affirmation is entitled “Claim.” Claimant does not reference this document in his motion papers. Apparently, claimant refers to the second document attached to his affirmation as Exhibit A and describes it as “[t]he Notice of Claim which was filed on April 2, 2009.” As previously stated the Court of Claims Act does not provide for a “notice of claim” however it does provide for a notice of intention to file a claim which is only served on defendant and not filed with the Clerk of the Court. The date stamp on claimant’s “notice of claim” evinces that the document was not filed but merely served on the Office of the Attorney General on April 2, 2009. Claimant seems to refer to this document as his proposed “notice of claim” and it appears as though defendant also responded to claimant’s motion as if this document was the proposed claim. Thus, the Court also treated the document entitled “notice of claim” as claimant’s proposed claim in this matter.

Claimant, Aaron Homer, alleged in his proposed claim that on December 3, 2008 at approximately 1:30 p.m. he was injured while standing in a “bucket truck.” At some point the bucket got stuck on a beam and when the bucket was released it “jerked” in a manner causing claimant to strike the steel beam above him. The incident took place at the Loop Parkway Bridge over Long Creek at Jones Beach State Park, in the County of Nassau, State of New York. Claimant was an employee of Olsen Engineering, Inc. at the time of the accident. Claimant states that the accident was caused due to the negligence of defendant in its ownership, operation and maintenance of the bucket and in failing to provide safety equipment pursuant to applicable labor laws, OSHA and Industrial Codes.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The “notice of claim” and the New York State Department of Transportation (NYSDOT) vehicle accident report were served on defendant on April 2, 2009. Claimant argues that these documents identify the time and place of the occurrence, the operator’s name, a description of the accident, the vehicle ID number, damage to the NYSDOT equipment and the fact the claimant indicated an injury. Claimant also alleges that the Olson Engineering Incident Report identifies five NYSDOT witnesses to the accident. Despite the Office of the Attorney General date stamp, defendant denies being served with a notice of intention or a claim in this matter. Defendant acknowledges being served with the present motion on May 4, 2009. Defendant does not state how its ability to investigate claimant’s accident has been impaired or how it would be prejudiced by claimant filing a late claim at this time. Thus, the Court finds that the balance of these factors weigh in claimant’s favor.

The next factor to be assessed is whether claimant has any other available remedy. Neither claimant nor defendant has addressed this factor. Since it is claimant’s burden to establish each factor in a late claim motion, the Court must find this factor in defendant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

As previously stated, claimant alleges that his accident was caused due to the negligence of defendant in its ownership, operation and maintenance of the bucket and in failing to provide safety equipment pursuant to applicable labor laws, OSHA and Industrial Codes. Claimant has failed to specify the sections of the labor law that he is proceeding under, the underlying factual and legal factual justification for each section as well as, where relevant, the specific sections of the industrial code which may apply to the case at hand. Thus, the Court is unable to determine, at this juncture, the merits of his claim.

Therefore, for the foregoing reasons, claimant’s motion is denied without prejudice to claimant’s ability to file another late claim motion.

July 27, 2009
Hauppauge, New York
Judge of the Court of Claims