Claimant's late claim labor law motion.
|Claimant(s):||DANIEL COLLINS, III|
|Claimant short name:||COLLINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Schwartzapfel Lawyers P.C.
By: Olga Siamionova-Muzio, Esq.
|Defendant's attorney:||Armienti, DeBellis, Guglielmo & Rhoden LLP
By: Mohammad M. Haque, Esq.
|Third-party defendant's attorney:|
|Signature date:||December 22, 2017|
|See also (multicaptioned case)|
The following papers were read and considered on this motion: Claimant's Notice of Motion, Attorney's Affirmation in Support with annexed Exhibits 1-8, Claimant's Affidavit in Support, Defendant's Affirmation in Opposition, Defendant's Memorandum of Law in Support of Opposition and Claimant's Reply Affirmation.
Claimant, Daniel Collins III, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10 (6). Defendant, the State of New York, has opposed claimant's motion.
Claimant alleges that on July 26, 2016 at approximately 12:10 p.m. he was injured while demolishing a guardrail which was part of a construction site located on NY Route 25 over the Long Island Expressway (LIE) in the Town of Riverhead. Iron Bridge Constructors had previously entered into a contract with defendant, the owner of the roadway, for bridge rehabilitation. On the date of the accident claimant was employed as a laborer by Iron Bridge Constructors. At that time the workers were demolishing the guardrail on the west side of the bridge directly over the eastbound side of the LIE. In order to perform the work claimant states that he was only provided with a demolition saw. Claimant asserts that proper safety protocol requires another worker with machinery equipped with a safety device to secure the guardrail.
Claimant states that on July 26, 2016 at about 11:50 a.m. he was demolishing the guardrail when the guardrail fell and crushed his left foot. Claimant states that as a result he made an immediate complaint to his supervisor as well as the State Inspectors who were present at the job site.
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 ). 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 ). 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. Claimant alleges that defendant had notice of the essential facts constituting the claim as well as an opportunity to investigate the circumstances underlying the claim because claimant reported the accident immediately after it occurred to his employer and defendant's representative at the job site were notified as well. Defendant noted the accident in its Daily Work report and also prepared its own accident report.
Although 10 months elapsed prior to his serving defendant with his late claim motion, given the facts and circumstances surrounding this case it cannot be said that such delay substantially prejudiced defendant's opportunity to investigate the claim (Smith v State of New York, 63 Ad3d 1524 [4th Dept 2009]). Consequently, 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. In this case, claimant has filed a workers compensation claim and thus claimant has other available remedies. As such this factor weighs 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 Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Claimant has established, for the purposes of this motion, that his claim is meritorious (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. 18 NY3d 1 ).
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Court finds that the factors favor claimant's application. Thus, the Court hereby grants claimant's motion to file a late claim.
Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.
December 22, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims