Opinion
# 2013-028-512 Motion No. M-82804
06-17-2013
Synopsis
Late claim motion is granted on the condition that Movant corrects a defect in the proposed claim.
Case information
UID: 2013-028-512 Claimant(s): ROBERT WETTER and LAURA WETTER Claimant short name: WETTER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-82804 Cross-motion number(s): Judge: RICHARD E. SISE DELL, LITTLE, TROVATO & VECERE, LLP Claimant's attorney: BY: Joseph N. Cotilletta, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Theresa N. Wilson, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: June 17, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Movants' motion for permission to late file an untimely claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion and Supporting Affirmation of Joseph N. Cotilletta, Esq., with annexed exhibits; and
2. Affirmation in Opposition of Theresa N. Wilson, AAG, with annexed exhibits.
Filed papers: None
Movants' proposed claim (Cotilletta affirmation, Exhibit A) alleges that Movant Robert Wetter was working as a laborer for Hallen Construction Co. on a project that required location and identification of defective gas lines on the Long Island Expressway "in Dix Hills, east of Bagatelle Road, near exits 51/52 of the LIE" in Suffolk County, New York. He was injured, it is alleged, when he stepped onto uneven ground while descending from his work vehicle, a vehicle that had not been equipped with any steps or other safety device. The proposed claim contains no reference to the date of this incident. The State's liability for his injuries is premised on its alleged ownership of the roadway, its negligence in the ownership, operation, design, construction, repair and maintenance of the location and its failure to provide a proper and safe place to work.
Late claim relief is available only if the motion is brought within the applicable CPLR article 2 statute of limitations, in this case, the three years imposed by CPLR 214 on negligence actions. Inasmuch as the proposed claim contains no information about the time when Movants' injury occurred, it is not possible to know from that document whether the instant application is timely. Other attached exhibits indicate that the accident occurred on June 6, 2012, however, in which case it would be timely. In the interest of judicial economy and because Defendant agrees that the incident occurred on that date, the Court will consider the other factors relevant to a late claim application.
In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act § 10 (6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the claim;
(3) whether the State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and
(6) whether the claimant has any other remedy.
Counsel for Movants asserts that the delay in this case was excusable because the identity of the property's owner was not known until November 9, 2012 when the relevant information was acquired as a result of a FOIL request. Unfortunately for Movants, barring very unusual circumstances, it has been held that mistake in the identity of the the proper Defendant or a failure to ascertain the proper Defendant is not an acceptable excuse for delay in commencing an action in this Court (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002],lv dismissed 99 NY2d 589 [2003]; Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854 [1977];Lostracco v the State of New York, New York State Thruway Auth. and New York State Canal Corp., UID 2002-031-064 [Ct Cl, Minarik, J., Dec. 12, 2002]; compare General Municipal Law § 50- e [5]; Santana v Western Regional Off-Track Betting Corp., 2 AD3d 1304 [4th Dept 2003], lv denied 2 NY3d 704 [2004] [under General Municipal Law, the delay caused by error concerning identity of correct government entity to be sued is excusable]).
The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. Movant refers to the presence of on-site safety inspectors required by OSHA and the further requirement that a contractor such as Movant's employer must maintain records of any accident to be periodically reviewed by OSHA as proof that the State was on notice of the incident and thus had ample opportunity to investigate the matter. The existence of a report filed with, or available for inspection by, the State does not automatically establish that there was sufficient notice (Matter of Sandlin v State of New York, 294 AD2d at 724). Furthermore, most courts have held that the statutory reference to "the facts constituting the claim" requires notice that there will be -- or is likely to be -- litigation in the future (Block v New York State Thruway Auth., 69 AD2d 930 [3d Dept 1979]) or, at a minimum, provide some information that the State is negligence may have caused the injury and therefore a reason to anticipate litigation (Espinal v State of New York, 159 Misc 2d 1051 [Ct Cl 1993]; Pucci v State of New York, UID No. 2004-032-032 [Ct Cl, Hard, J., June 1, 2004]). In the instant case, Defendant did not receive adequate notice of the facts constituting the claim. On the other hand, since the incident was documented and the motion was commenced only three months after expiration of the statutory 90-day period suggests that any prejudice resulting from this lack of notice would be minimal.
With respect to whether Movant has an alternative remedy, Defendant suggests that such exists because Movant can file a Worker's Compensation claim. It has been recognized, however, that such claims provide only a partial remedy to the injured party (Matter of Smith v State of New York, 63 AD3d 1524 [4th Dept 2009]; Garguiolo v New York State Thruway Auth., 145 AD2d 915 [4th Dept 1988]; Phelps v State of New York, UID No. 2012-041-062 [Ct Cl, Milano, J., Aug. 1, 2012]).
Of the six enumerated factors set forth in §10 (6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court's satisfaction that the proposed claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889 [3d Dept 1995]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). To succeed in this, the proposed claim must not be patently groundless, frivolous, or legally defective and there must be reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Counsel for Defendant characterizes the burden that a movant must meet in this regard as a "heavy" one (Wilson affirmation, ¶ 14). This conclusion is based on the inarguable observation that by requiring the proposed claims submitted with late claim applications to have "the appearance of merit," the statute "clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely" (Frederick v State of New York, 23 Misc 3d 1008 [Ct Cl 2009]). Counsel overlooks the fact that the "burden" placed on a litigant who files a timely claim is nonexistent, i.e. there is no burden at all. Any document that is captioned a claim and is accompanied by the appropriate filing fee must be accepted by the Court, even if the cause of action contained in the document is "patently groundless, frivolous or legally defective." A party who seeks to file an untimely claim, therefore, must meet a standard that is something more than nothing but he is not required "to definitively establish the merits of his claim, or overcome all legal objections thereto" (Wang v State of New York, 23 Misc 3d 1136[A] [Ct Cl 2008]). In the proposed claim submitted with this motion, Movants have alleged that, while engaged in a work project, Robert was injured when he "landed on uneven ground in the roadway owned by the State of New York." This allegation is sufficient to satisfy defense counsel's own description of what is needed to state a cause of action for common law negligence: a breach of the duty to provide a safe workplace that is owed by the owner of property and a general contractor (see Wilson affirmation, ¶ 16).
The proposed claim also contains an allegation that the vehicle from which Movant was exiting lacked steps or other means of descending the vehicle. Such a claim would need to be based on either the State's ownership of the vehicle or a property owner's statutory duty to see that workers are provided with safe equipment to prevent height-related injuries (Labor Law § 240 [1]). The proposed claim does not contain any allegations that, if proven, would establish liability on either ground.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. As noted above, however, the proposed claim is defective. Since that defect can be easily remedied and counsel for Defendant has acknowledged that the date on which the incident occurred was June 6, 2012 (Wilson affirmation, ¶ 6), the Court will grant this motion on the condition that the missing information is added to the claim that is to be filed and served. Consequently, Movants are directed to file and serve a claim identical to the proposed claim, annexed as Exhibit A to the Cotilleta affirmation, with the addition of the date on which the claim arose inserted into Paragraph 3 and no other changes. Filing and service is to be made in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.
Movants' motion is granted.
June 17, 2013
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims