Opinion
# 2020-028-545 Motion No. M-95708
12-15-2020
In the matter of the claim of Robert Joseph v. THE STATE OF NEW YORK
SILBERSTEIN, AWAD & MIKLOS, P.C. BY: Steven J. Labell, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2020-028-545 |
| Claimant(s): | In the matter of the claim of Robert Joseph |
| Claimant short name: | Joseph |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption of the action has been amended to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-95708 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | SILBERSTEIN, AWAD & MIKLOS, P.C. BY: Steven J. Labell, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 15, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on a motion pursuant to Court of Claims Act § 10 (6) for permission to late file a claim:
1. Notice of Motion filed July 28, 2020;
2. Affirmation of Steven Labell filed July 28, 2020 with Exhibits A-E annexed;
3. Affirmation of Felice V. Torres filed August 13, 2020 with Exhibits A-B annexed;
4. Affirmation of Steven Labell filed October 6, 2020 with Exhibits F-G annexed;
5. Affirmation of Mary Beth Harmon filed October 7, 2020 with Exhibit 1 annexed.
Filed papers: None
A motion has been presented, pursuant to Court of Claims Act § 10 (6), for permission to late file a claim. Under that provision a person who fails to file or serve a claim or a notice of intention, may, in the discretion of the court, be permitted to file such claim at any time before the statute of limitations expires. The late filing provision lists six criteria for the court to consider in determining if the filing should be permitted: whether the delay in filing 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 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. Other factors deemed relevant by the court may also be considered.
The proposed claim arises from a construction site accident that occurred at South Beach Psychiatric Center and/or South Beach Mental Health Redevelopment Projects (South Beach) located at 777 Seaview Avenue, Staten Island. On the day of the accident, April 30, 2019, claimant was employed by Leon D. Dematteis Construction Corp. as a construction worker. As alleged in the claim, he tripped and fell over debris on a staircase and sustained severe injuries to his right ankle and knee. The claim is based on violations of Labor Law §§ 200 and 241 (6).
The failure to serve the Attorney General is explained in an affirmation of the attorney for claimant. According to the attorney, he directed a paralegal to have the claim served on the Attorney General and the New York State Office of Mental Health (OMH). However, the process server only served OMH. In an affidavit by the paralegal she attributes the failure to serve the Attorney General to a mis-communication between herself and the process server. Wherever responsibility for the mis-communication lies, the failure to effect proper service rests with the attorney and constitutes law office failure, which is not considered a reasonable excuse (Hyatt v State of New York, 180 AD3d 764 [2d Dept 2020]).
Though claimant failed to serve the claim on the Attorney General within the time allotted, defendant does not dispute that a copy of the claim was personally served on counsel for OMH on June 19, 2019, within 90 days of accrual of the claim. Service on counsel for the alleged responsible agency provided defendant with the requisite knowledge of the essential facts constituting the claim and an opportunity to investigate (see Carmen v State of New York, 49 AD2d 965 [3d Dept 1975]). Moreover, given that there was notice and an opportunity to investigate, there is no apparent prejudice. Though defendant argues that it has been prejudiced by the delay of nearly 15 months in providing the Attorney General with notice of the claim, the passage of time alone does not signal prejudice particularly where defendant had timely notice and an opportunity to investigate.
For purposes of a late filing application, a proposed claim is generally considered to have an appearance of merit if it is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Sands v State of New York, 49 AD3d 444 [1st Dept 2008]). Here, the claim asserted is based on violations of Labor Law §§ 200 and 241 (6) arising from defendant's status as an owner of, or contractor at, the construction site and the injuries to claimant's knee and ankle brought about by an unsafe condition, namely, debris on a staircase. On its face the proposed claim alleges viable causes of action.
Defendant argues, however, that the State of New York is not a proper defendant as the work being done at South Beach was undertaken by the Dormitory Authority of the State of New York (DASNY) and the State was neither the owner of the premises nor a contractor on the project. While defendant is correct in arguing that DASNY is a separate and distinct entity from the State and is not subject to the jurisdiction of this court (see Public Authorities Law § 1691), the submissions by the parties are inconclusive in establishing whether the State is the owner of the premises, a contractor on the project, or neither. Claimant submitted a "Professional and Owner Certification" signed by Scott Hughes, a professional engineer, on behalf of the "owner" with an email address at OMH. While claimant's attorney asserts in his affirmation that the document was filed in connection with a work permit, the document itself does not make a connection to the property where claimant was injured. Claimant also points out that Mental Hygiene Law § 7.17 (b) shows that South Beach is operated by the State. However, the fact that the State operates a hospital on the premises is not sufficient to find the State may potentially be liable under the Labor Law provisions relied on by claimant.
To support its argument that the State was not the owner of the property or a contractor on the project, defendant submitted an affidavit by Joseph Alexander, Deputy Director of Facility Administration for OMH. In his affidavit Alexander avers that based on his research the "Professional and Owner Certification" submitted by claimant does not apply to the building where claimant was allegedly injured and does not show that the State owns the building. Alexander also asserts, without elaboration, that DASNY was doing work at the subject building at the time of the accident and that OMH did not own the building. The affidavit, however, does not eliminate the possibility that the State, as opposed to OMH, owned the building or was involved in the work that was being done. Moreover, in a letter from OMH Office of Counsel, to four different insurers, counsel sets forth the factual bases of the claim asserted here and requests defense and indemnification of the action. The request is based on certificates of insurance issued to claimant's employer who, according to the letter, was, at the time of the occurrence, under contract with the State of New York and DASNY. As the submissions leave open the question of the State's involvement, defendant's argument does not provide a sufficient basis to contradict the prima facie showing that the proposed claim has an appearance of merit.
Alternative remedies, including workers' compensation benefits, are available to the claimant (see Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]).
Based on consideration of the relevant factors, the motion for permission to late file a claim should be granted.
Accordingly, it is
ORDERED, that the motion is granted and claimant is directed to serve and file the proposed claim within 30 days of the date of filing of this decision and order.
Claimant is advised that the previously filed claim has been dismissed and that the previous filing will not constitute compliance with the directive here to file and serve the proposed claim. --------
December 15, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims