Opinion
03-19-2024
Guy Romano, Claimant, v. The State of New York, Defendant.
For Claimant: Fortunato & Fortunato, PLLC, Annamarie Fortunato, Esq. For Defendant: Letitia James, By: Shawn M. Cestaro, Assistant Attorney General
Unpublished Opinion
For Claimant: Fortunato & Fortunato, PLLC, Annamarie Fortunato, Esq.
For Defendant: Letitia James, By: Shawn M. Cestaro, Assistant Attorney General
DAVID A. WEINSTEIN, Judge.
By motion filed on May 23, 2023, movant Guy Romano seeks permission to treat his verified Notice of Intention to Make a Claim ("NOI"), which was served on the Office of the Attorney General on December 16, 2019, as a claim before this Court (Affirmation of Annamarie Fortunato, Esq., dated May 23, 2023 ["Fortunato Aff"] ¶ 1, Ex 1).
The NOI, which would become the claim if the motion were granted, states that the causes of action against defendant State of New York arise out of violations of various provisions of the Labor Law and Industrial Code that allegedly occurred on October 8, 2019, while Romano was working for Halmar International Construction, LLC "on the Kew Gardens Interchange Construction Site (Area GE-1), more specifically on a steep slope on the closed southernmost lane of the Grand Central Parkway East, reference marker 907 M, below the Union Turnpike between 135th Street and 138th Street in Kew Gardens, New York" (NOI ¶ 3). At this time, while Romano was working at this location, "he was run over buy a 2016 Peterbilt dump truck bearing license plate number AS753X...[while] it was descending a steep slope" (id.).
According to the NOI, the accident was caused by, among other things, the State's negligence in failing to (1) provide the person directing the truck with the required flag or paddle to properly signal the truck operator; (2) ensure the trucks breaks were in good working order; (3) provide wheel blocks for the truck, which was descending a steep slope, to prevent the truck from sliding; (4) barricade the location where Romano was working to protect him from the movement of dump trucks nearby; and (5) properly control the movement of dump trucks by a designated flag person with the required flag or paddle as required under the Industrial Code (NOI ¶ 3). Romano contends that this accident caused severe injuries to his feet, ankles and legs, resulting in multiple surgeries (id. ¶ 4).
The relief sought by movant is provided for by Section 10(8)(a) of the Court of Claims Act, which states as follows:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
There is no dispute that Romano timely served his NOI on the Office of the Attorney General. However, movant's cause of action accrued on October 8, 2019, and under normal circumstances the applicable three-year statute of limitations under CPLR 214(5) would have expired on October 9, 2022. In this case, however, movant had the benefit of the 228-day tolling period created by the executive orders issued in response to the Covid-19 Pandemic (Fortunato Aff ¶ 4; see also McLaughlin v Snowlift, Inc., 214 A.D.3d 720, 721 [2d Dept 2023] [executive orders issued during the pandemic provided for a toll of the statute of limitations from March 20, 2020 through November 3, 2020, a period of 228 days]). With the additional 228 days, the statute of limitations for this claim did not expire until May 24, 2023 and, therefore, the motion was timely filed on May 23, 2023 (id.).
The State failed to timely respond to Romano's motion and, in a letter dated October 20, 2023, sought leave to submit a late opposition, which it also filed for the Court's consideration (Affirmation in Opposition of Shawn Cestaro, Esq., dated October 20, 2023 ["Cestaro Aff"] ¶ 2). Defendant explains that it failed to timely oppose the motion due to what amounts to law office failure (Cestaro Aff ¶ 4 citing CPLR 2004 ). I find that the State's late submission of its opposition is not prejudicial to Romano, and there is good cause to consider the opposition as part of the record in accordance with CPLR 2004, along with Romano's reply thereto (see U.S. Bank Trust, N.A. v Desmond Ellis, 181 A.D.3d 451, 454 [1st Dept 2020] [court acted within its discretion in accepting late opposition papers where counsel provided affirmation detailing law office failure and there was no prejudice]).
This statute provides that "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed" (CPLR 2004).
On the merits, the State argues that under Court of Claims Act § 10(3), movant had two years from accrual to file and serve his claim following service of the NOI, and failed to do so (id. ¶¶ 5-18). Defendant contends that this failure divests the Court of jurisdiction, and thus I cannot grant movant the relief he seeks (see id. ¶ 14).
However, as movant notes in counsel's reply affirmation (Reply Affirmation of Annamarie Fortunato, Esq., dated October 23, 2023 ¶ 3), he is not arguing that he can timely file a claim under section 10(3). He is seeking relief under section 10(8), which specifically applies to a "claimant who timely serves a notice of intention but who fails to timely serve or file a claim." In short, the relief provided by section 10(8) is precisely for the situation defendant describes - when claimant has served an NOI but did not commence the action within the section 10(3) time frame. Defendant thus fails entirely to address movant's actual application. Most importantly, the State does not assert any ground which would warrant denying such relief. In particular, it does not assert that Romano's causes of action are time-barred under the applicable statute of limitations - which for reasons stated above would not be correct in any case.
Given that the State does not contest that the NOI was served within the 90-day window set forth in section 10(3), nor does it object to the application of the 228-day tolling period to the statute of limitations at issue here (see McLaughlin, 214 A.D.3d at 721), the only questions before me are whether the NOI states facts sufficient to constitute a claim and whether granting the application would prejudice defendant.
In deciding whether the NOI has set forth facts sufficient to constitute a claim, courts look to whether it complies with Court of Claims Act § 11(b) (see Edens v State of New York, 259 A.D.2d 729, 730 [2d Dept 1999]); Mattaway v State, 61 Misc.3d 1210[A], *3 [Ct Cl 2018]). Under that provision, the claim must at a minimum "state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." In general, the claim must "provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability'" (Sommer v State of New York, 131 A.D.3d 757, 757-758 [3d Dept 2015], quoting Flemming v State of New York, 120 A.D.3d 848, 848 [3d Dept 2014]).
I find that the facts Romano has alleged in the NOI meet these requirements and state facially viable causes of action for personal injuries under Labor Law §§ 200 and 241(6) (see Artale v State of New York, 140 A.D.2d 919, 919 [3d Dept 1988] [alleged facts in NOI must give rise to cause of action upon which relief may be granted in order to be treated as a claim]; Muller v State, 184 Misc.2d 500, 501 [Ct Cl 2000] [granting 10(8) relief when NOI detailed the date, time and location of the accident as well as the manner in which the accident occurred and the manner in which the State caused the accident]). Nor can I find any prejudice to the State from granting the motion, particularly as it has not intimated what such prejudice might be, and no such prejudice may be presumed from the passage of time alone (see Mattaway, 61 Misc.3d at *5).
In view of the foregoing, it is
ORDERED that movant's motion seeking permission to treat the NOI served on December 16, 2019 as a claim pursuant to Court of Claims Act § 10(8)(a) is granted; and it is further
ORDERED that movant shall file the NOI served on December 16, 2019 in its precise present form - except it shall be captioned as a "Claim" - with the Clerk of the Court of Claims within 30 days of the filing date of this Decision and Order in compliance with Court of Claims Act § 11-a and the Uniform Rules for the Court of Claims; and it is further
ORDERED that defendant shall serve and file an answer within forty days of the filing of the Claim, in accordance with Section 206.7 of the Rules of the Court of Claims.
Papers Considered:
1. Notice of Motion and Affirmation in Support of Motion Pursuant to Court of Claims Act § 10(8)(a) to Treat the Notice of Intention as a Claim, with Exhibits annexed thereto.
2. Court Correspondence, dated October 18, 2023.
3. Letter from the Office of the Attorney General, dated October 20, 2023, and Affirmation in Opposition of Shawn M. Cestaro, dated October 20, 2023, with Exhibit A annexed thereto.
4. Reply Affirmation of Annamarie Fortunato, Esq., dated October 23, 2023