Movant's motion seeking late claim relief is denied where defendant submitted proof that it does not own the building where the accident occurred.
|Claimant short name:||NAVARRO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Cellino & Barnes, P.C.
By: Erin R. Applebaum, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Edward J. Curtis, Jr., Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||April 3, 2018|
|See also (multicaptioned case)|
Movant seeks permission to file and serve a late claim alleging that defendant negligently maintained and operated premises located at 501 West 30th Street, New York, New York. The claim alleges that movant sustained serious injuries when he tripped and fell over a hazardous and dangerous condition located at Hudson Yards Tower C (Proposed Claim ¶ 4). Defendant opposes the motion. For the reasons set forth below, the Court denies movant's motion for permission to file a late claim.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (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 state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept. 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept. 1986]).
The proposed claim alleges a cause of action sounding in negligence, therefore the three-year statute of limitations set forth in CPLR 214 applies. The cause of action accrued on February 3, 2016, the date that movant tripped and fell sustaining injuries. Movant filed the instant motion seeking permission to file a late claim on November 16, 2017. Thus, the claim would be timely under CPLR Article 2, and the Court will consider the statutory factors set forth in Court of Claims Act § 10 (6).
The first factor to consider is whether the delay in filing and serving the claim is excusable. Movant argues that the delay is excusable because he was suffering from a physical disability and did not hire a personal injury attorney until four months after the accident. Although movant is correct that a movant's physical disability may serve as an acceptable excuse for his failure to timely file a claim (Plate v State of New York, 92 Misc 2d 1033, 1039 [Ct Cl 1978]), movant did not file the instant motion until November 2017, despite having retained counsel in June 2016. Movant attributes this delay to his pursuit of his workers' compensation claim. However, movant's pursuit of his worker's compensation claim is not a legally acceptable excuse for his delay in timely filing a claim (see Walach v State of New York, 91 Misc 2d 167, 176 [Ct Cl 1977]). Accordingly, the Court finds that this factor does not weigh in movant's favor.
The next three factors--defendant's notice of the essential facts constituting the claim, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Movant alleges that defendant had notice of the essential facts constituting the claim and an opportunity to investigate the claim because movant filed a worker's compensation claim. In response, defendant contends that the New York State Workers' Compensation Board handles thousands of applications per year. Moreover, defendant argues that it does not own the subject premises and therefore would have had no notice of the essential facts constituting the claim, or an opportunity to investigate the claim. The Court agrees. Movant does not explain how defendant would have notice of movant's claim aside from the bare fact that he filed a worker's compensation claim (see Estate of Santana, 92 Misc 2d 1, 7-8 [Ct Cl 1977] [filing of an accident report with the Department of Motor Vehicles did not constitute notice to the State]). Although it is unlikely that the allegedly hazardous and dangerous condition that caused movant's injuries would have continued to exist during the 90-day period following movant's accident (Nyberg v State of New York, 154 Misc 2d 199, 200-201 [Ct Cl 1992] [declining to find prejudice where the cause of the accident was "transitory in nature"]), the Court finds that the two factors of notice of the essential facts of the claim and an opportunity to investigate those facts do not weigh in movant's favor, as defendant did not have notice of the claim until nearly two years following the accident. However, the Court can discern no actual prejudice that would result, as the conditions at the construction site were likely transitory in nature (Donaldson v State of New York, 157 AD2d 805, 806 [3d Dept. 1990]).
With respect to whether movant has an alternate remedy available, movant argues that he does not have an alternate remedy because his workers' compensation claim was closed early in 2017, leaving him with no other remedy. The Court notes that even if movant's workers' compensation claim were still active, 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]). Thus, the Court finds that this factor weighs in movant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Here, defendant contends that movant's claim lacks merit because the State does not own or maintain the building where movant sustained injuries. In support of this contention, defendant submits a copy of the deed for 501 West 30th Street, New York, New York which shows that defendant does not own the location where the accident occurred (Affirmation in Opposition, Exhibit A). On the day of movant's fall, the Metropolitan Transportation Authority (MTA) owned Hudson Yards, and the Court of Claims does not have jurisdiction over the MTA (Affirmation in Opposition ¶ 8, Exhibit A; Swan v State of New York, UID No. 2015-049-032 [Ct Cl, Weinstein, J., May 28, 2015]; Posner v Metropolitan Trans. Auth., UID No. 2010-016-007 [Ct Cl, Marin, J., Feb. 4, 2010]). Furthermore, movant was working for Five Star Electric Company on the day of his fall, which is not a state entity (Applebaum Aff. ¶ 3). The proposed claim fails to state how negligence committed by an employee of the State of New York caused his injuries, as the State of New York did not own the building in question, nor did movant work for the State of New York at the time of his injuries (see Schwartz v State of New York, UID No. 2017-032-050 [Ct Cl, Hard, J., Oct. 3, 2017]; Sumowicz v State of New York, UID No. 2006-036-550 [Ct Cl, Schweitzer, J., Sept. 5, 2006]). The claim is devoid of any allegations against defendant, and it is well settled that defendant should not be required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ). Accordingly, the Court finds that the claim does not appear to be meritorious, and the final factor does not weigh in movant's favor.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion for late claim relief (M-91478) is denied.
April 3, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated November 13, 2017; and Affirmation in Support of Motion, sworn to by Erin R. Applebaum, Esq. on November 13, 2017, with Exhibits A through C annexed thereto.
2. Affirmation in Opposition, affirmed by Edward J. Curtis, Jr., AAG on January 8, 2018, with Exhibits A through B annexed thereto.