Opinion
# 2017-032-005 Claim No. None Motion No. M-88891
02-07-2017
CATHERINE TAORMINA v. THE STATE OF NEW YORK
Dell & Dean, PLLC By: Joseph Dell, Esq. and Michael D. Schultz, Esq. Mound Cotton Wollan & Greengrass, LLP By: Maegan McAdam, Esq. Of Counsel
Synopsis
Movant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) is granted.
Case information
| UID: | 2017-032-005 |
| Claimant(s): | CATHERINE TAORMINA |
| Claimant short name: | TAORMINA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-88891 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Dell & Dean, PLLC By: Joseph Dell, Esq. and Michael D. Schultz, Esq. |
| Defendant's attorney: | Mound Cotton Wollan & Greengrass, LLP By: Maegan McAdam, Esq. Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | February 7, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On July 12, 2016, movant moved for leave to file and serve a late claim to recover damages for personal injuries that she sustained on August 12, 2015 while working in a construction yard owned by defendant in the Bronx, New York (see Court of Claims Act § 10 [6]). Defendant opposes the motion on the grounds that movant has not demonstrated that her delay in filing is excusable, that she has no other available remedy, or that her claim is meritorious.
Specifically, movant's proposed claim alleges that, while working at the construction site, she was caused to slip and fall on construction debris and loose gravel due to defendant's failure to maintain the premises in a reasonably safe condition, and that she sustained serious injuries as a result thereof. Because her motion for late claim relief was brought within the three-year statute of limitations applicable to negligence claims under CPLR 214 (5), such relief is left to the discretion of the Court (see Court of Claims Act § 10 [6]; Tartaglione v State of New York, UID No. 2016-016-002 [Ct Cl, Marin, J., Jan. 5, 2016]; compare Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]). In deciding whether to grant a late claim application, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 [6]). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, claimant contends that she did not serve a claim or a notice of intention to file a claim upon the Attorney General within 90 days of her accident because she was not aware that the construction site was owned by the State. However, "barring very unusual circumstances, it has been held that mistake in the identity of the proper [d]efendant or a failure to ascertain the proper [d]efendant is not an acceptable excuse for delay in commencing an action in this Court" (Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]; see Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Lostracco v the State of New York, New York State Thruway Auth. and New York State Canal Corp., UID No. 2002-031-064 [Ct Cl, Minarik, J., Dec. 12, 2002]; see also Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; compare General Municipal Law § 50- e [5]). Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Here, movant contends that her employer's obligations under the Occupational Safety and Health Act to have safety inspectors on the premises and maintain records of any on-site accidents constitute proof that the State was on notice of the incident and thus had ample opportunity to investigate the matter (Aff. in Support of Motion ¶ 42). However, even if defendant did have notice that an accident occurred, claimant has offered no proof to indicate that it "had timely notice of the existence of the present claim . . . and its underlying facts so as to trigger an investigation of the claim and avoid substantial prejudice" (Block v New York State Thruway Auth., 69 AD2d 930, 930 [3d Dept 1979]; see Matter of Sandlin v State of New York, 294 AD2d at 724; Pucci v State of New York, UID No. 2004-032-032 [Ct Cl, Hard, J., June 1, 2004]). On the other hand, claimant has provided documentation indicating that she filed with the Workers' Compensation Board immediately following the incident. Such evidence, especially when coupled with the fact that her motion was filed only eight months after expiration of the statutory 90-day period, suggests that any prejudice resulting from the delay would be minimal (see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]).
With respect to the factor of alternative remedies, the Court agrees with defendant that claimant has an alternative remedy in the form of her workers' compensation claim. The Court also agrees, however, with claimant's argument that the adequacy of said remedy may be less than sufficient. Accordingly, this factor weighs in neither party's favor (see Epstein v State of New York, 88 AD2d at 967; Blaze v State of New York, UID No. 2010-032-011 [Ct Cl, Hard, J., Mar. 24, 2010]; Rosenhack v State of New York, 112 Misc 2d at 969).
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that her 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 [6]; 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 [her] 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, the Court finds that claimant has met her minimal burden of establishing the appearance of merit. "To establish a cause of action sounding in negligence, [claimant] must establish the existence of a duty on defendant's part to [claimant], breach of the duty and damages" (Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565, 576 [2011]; accord Korsinsky v Rose, 120 AD3d 1307, 1309 [2d Dept 2014]). In the proposed claim submitted with this motion, movant alleges that, while engaged in a work project, she slipped on gravel and construction debris, which caused her "to fall and sustain injuries by reason of the negligence of State of New York, its agents, servants, employees and/or licensees and/or contractors in the ownership, operation, control and maintenance of said premises" (Proposed Claim ¶ 3). The Court finds that said allegations clearly set forth the requisite elements of a cause of action sounding in negligence and "provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015] [internal quotation marks and citations omitted]). Overall, movant's submissions satisfy the minimal burden of showing that her claim is not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d at 834; see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]; Lostracco v the State of New York, New York State Thruway Auth. and New York State Canal Corp., UID No. 2002-031-064 [Ct Cl, Minarik, J., Dec. 12, 2002]).
Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows movant to file and serve a late claim against defendant.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-88891) is granted and movant is directed to file and serve a verified claim identical to the proposed claim provided in support of this motion in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
February 7, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion dated July 12, 2016, and Affirmation in Support, affirmed by Joseph G. Dell, Esq., on July 12, 2016, with exhibits. 2. Affirmation in Opposition to Motion for Leave to File a Late Claim, affirmed by Maegan B. McAdam, Esq., on September 27, 2016. 3. Affirmation in Further Support of Motion, affirmed by Michael D. Schultz, Esq., on October 15, 2016.