Application to file late negligence claim is granted where claim alleging that defendant had, or should have had, notice of defective sidewalk yet failed to make timely repair has appearance of merit and defendant had prompt notice of circumstances underlying claimant's accident and injuries.
|Claimant short name:||FANTAUZZO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||SMALLINE AND HARRI
By: Martin D. Smalline, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 22, 2021|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim. Defendant opposes the motion.
The proposed claim alleges that on September 17, 2020, at about 1:15 p.m., claimant fell and was injured while on her way to lunch, due to a "dangerous sidewalk condition" on the sidewalk of the State Campus near her place of employment with the New York State Office of General Services in Albany, New York.
According to claimant's supporting affidavit, her employer, the proposed defendant State of New York, was made aware of the facts and circumstances of the accident on the day the accident occurred "by virtue of [claimant] filing a claim under the NYS Workers Compensation Law."
Claimant's supporting affidavit further alleges that on March 1, 2021, the Workers Compensation Board determined that claimant was not in the course and scope of her employment at the time she was injured, because she was on her lunch break, and her workers compensation case was closed.
After retaining her attorney, claimant made this application, on June 6, 2021, seeking permission to file and serve a late claim against the State of New York.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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 cause of action accrued on September 17, 2020. The application to file a late claim was made on June 6, 2021, less than six months after the ninety-day period to serve and file a claim had expired (see Court of Claims Act 10 ).
The proposed claim alleges a cause of action sounding in negligence. CPLR 214 provides a three-year period to commence an action for negligence and the cause of action is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 ).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 ).
Claimant seeks to excuse her failure to timely serve and file her claim by essentially alleging that she believed a workers compensation claim was her appropriate remedy under the circumstances. The Court notes that in the context of similar late claim excuse requirements under the General Municipal Law a "claimant's mistaken belief that workers' compensation is his or her sole remedy does not constitute a reasonable excuse" Tate v State Univ. Const. Fund, 151 AD3d 1865, 1866 [4th Dept 2017]).
Although claimant has failed to offer a reasonable excuse for her failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The State appears to have had immediate notice of claimant's accident and an opportunity to investigate the circumstances underlying the proposed claim, because claimant asserts she promptly notified her New York State employer. A workers compensation claim was quickly filed by claimant and investigated, and eventually opposed, by the State. It was apparent that claimant had suffered injuries and defendant, in the exercise of due diligence, would be expected to, at a minimum, conduct a preliminary investigation of its potential liability for claimant's injuries.
Significantly, defendant does not deny that it had notice and an opportunity to investigate the circumstances underlying the proposed claim; nor does defendant credibly suggest that it would be prejudiced in the event late claim relief is granted. These factors weigh in favor of claimant.
Claimant has been denied workers compensation benefits and has no alternative remedy. Section 10 (6) requires that the proposed claim not be "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 Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court pointed out that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
In that regard, the Court notes that its consideration of the application's merit is not limited to the allegations of the proposed claim. Rather, the various papers supporting the application are considered in their entirety (see Dippolito v State of New York, 192 Misc 2d 395, 397 [Ct Cl 2002], which held that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits").
Defendant has not offered an affidavit by a person with personal knowledge of the facts disputing the factual allegations of the proposed claim and of the supporting affidavits. The allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The proposed claim demonstrates at least the "appearance of merit" of a cause of action for premises liability based upon a dangerous condition.
Upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file a late claim.
Claimant is directed to file and serve her claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.
July 22, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed June 7, 2021;
2. Affirmation of Martin D. Smalline, dated May 11, 2021, and attached exhibits;
3. Affidavit of Mary Fantauzzo, sworn to May 15, 2021, and attached exhibits;
4. Affirmation in Opposition of Christina Calabrese, dated July 5, 2021;
5. Reply Affirmation of Martin D. Smalline, dated July 13, 2021.