Opinion
2018–09002
10-07-2020
Joseph WINTER, appellant, v. STATE of New York, respondent.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for appellant. Floran Glennon Palendech Ponzi & Rudloff, P.C., New York, N.Y. (Nicholas J. Marino of counsel), for respondent.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for appellant.
Floran Glennon Palendech Ponzi & Rudloff, P.C., New York, N.Y. (Nicholas J. Marino of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, PAUL WOOTEN, JJ.
DECISION & ORDER
In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Stephen J. Lynch, J.), dated March 12, 2018. The order denied the claimant's motion for leave to file a late claim pursuant to Court of Claims Act § 10(6).
ORDERED that the order is affirmed, with costs.
On July 28, 2014, the claimant allegedly was injured while operating a jackhammer on or near the Heckscher Bridge in Islip. At the time, he was employed by Village Dock, Inc., which had entered into a contract with the New York State Department of Transportation to perform certain construction work at the site.
On July 21, 2017, the claimant moved for leave to file a late claim pursuant to Court of Claims Act § 10(6) against the State, the owner of the bridge, alleging violations of Labor Law §§ 200, 240(1), and 241(6). The Court of Claims denied the motion, and the claimant appeals.
Court of Claims Act § 10(3) requires that a claim to recover damages for personal injuries caused by the negligence of an officer or employee of the state must be filed and served upon the attorney general within 90 days after the accrual of such a claim. However, Court of Claims Act § 10(6) permits a court, in its discretion, upon consideration of enumerated factors, to allow a claimant to file a late claim. "The enumerated factors are whether the delay in filing [the claim] was excusable, the State had notice of the essential facts constituting the claim, the State had an opportunity to investigate the circumstances underlying the claim, the claim appears to be meritorious, the State is prejudiced, and the claimant has any other available remedy" ( Hyatt v. State of New York, 180 A.D.3d 764, 766, 120 N.Y.S.3d 52 ).
Although the Court of Claims is required to consider the six factors set forth in Court of Claims Act § 10(6), no single factor is deemed controlling (see Matter of Barnes v. State of New York, 161 A.D.3d 1325, 77 N.Y.S.3d 196 ; Matter of Thomas v. State of New York, 272 A.D.2d 650, 714 N.Y.S.2d 699 ; Matter of E.K. v. State of New York, 235 A.D.2d 540, 652 N.Y.S.2d 759 ), and the presence or absence of any one factor is not dispositive (see Morris v. Doe, 104 A.D.3d 921, 960 N.Y.S.2d 908 ; Broncati v. State of New York, 288 A.D.2d 172, 732 N.Y.S.2d 365 ).
Here, the claimant failed to demonstrate a reasonable excuse for his failure to file a timely claim, that the State had notice of the essential facts constituting the claim, and that the State had an opportunity to investigate his claim. The claimant also failed to sustain his initial burden of demonstrating that the State would not be substantially prejudiced by the filing of the untimely claim (see Tucker v. New York State Thruway Auth., 175 A.D.3d 632, 633, 107 N.Y.S.3d 73 ).
Accordingly, we agree with the Court of Claims' determination to deny the claimant's motion for leave to file a late claim pursuant to Court of Claims Act § 10(6).
DILLON, J.P., BALKIN, COHEN and WOOTEN, JJ., concur.