Late claim application granted, defendant did not establish undue prejudice . It had timely notice of the incident.
|Claimant(s):||JOHN DIAZ, by DONNA DIAZ as his personal needs and property management Guardian of JOHN DIAZ and DONNA DIAZ, Individually|
|Claimant short name:||DIAZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||THE FLOMENHAFT LAW FIRM, PLLC
By: Stephen D. Chakwin, Jr., Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Lena Paxos, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 29, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on movants' late claim application and oral argument was heard on January 16, 2018:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1
Defendant's Affirmation in Opposition and Exhibit...............................................2
Reply Affirmation and Exhibit................................................................................3
The proposed claim alleges that at approximately 8:45 a.m. on October 6, 2014, John Diaz(1) (hereinafter movant) was injured during the course of his employment as a construction worker at the Adam C. Powell State Office Building located at 163 West 125th Street, New York, NY (Movants' Ex. 1). The proposed claim alleges that movant was working on a mast climber platform on the east facade of the building and tripped and fell on a misplaced pipe while walking backwards. Movant allegedly sustained injuries to his head, neck and back, including traumatic brain injury/post-concussion syndrome with cognitive impairment.
In considering a late claim application, Court of Claims Act § 10 (6) requires that the Court consider, among other relevant factors: (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 a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
While it was not conclusively established that movants have a reasonable excuse for their delay attributable to movant's alleged brain injury,(2) it is noted that movant's wife was appointed as guardian of the person and property of movant (Movants' Ex. 4, Court's Ex. 1). Additionally, it is noted that while movants initial counsel may have been unreasonably delayed in bringing this late claim application, movants changed counsel on September 28, 2017 (Movant's Ex. 7). Movants' present counsel has diligently pursued this late claim application. The Court is also aware that movants may have another remedy available to them in Supreme Court as against the non-owner defendants. The presence or absence of any one factor, however, is not determinative.
Significant to the Court's determination on this application is that defendant did not establish undue prejudice or failure to timely investigate the underlying circumstances related to the proposed claim. Indeed, defendant conceded that it had timely notice of the incident report (Movants' Exs. 2, 5). This factor, along with an appearance of merit of the proposed claim weighed heavily in the Court's consideration of the factors presented on this application. Upon consideration of all the relevant factors, the Court finds that movants have sufficiently established entitlement to the granting of their application.
Accordingly, movants' application for leave to serve and file a late claim against the State is GRANTED. The claim shall be served and filed within 45 days of the filed stamped date of this Decision and Order and shall be served and filed in compliance with the provisions of the Court of Claims Act.
January 29, 2018
White Plains, New York
Judge of the Court of Claims
1. The claim of Donna Diaz, movant's wife, is derivative.
2. Whether movant's brain injury is causally related to the accident is an issue to be determined at trial and a greater burden of proof rests upon movants to prevail at trial.