Opinion
No. 125788.
01-05-2016
Michael TARTAGLIONE and Rosemarie Tartaglione, Claimants, v. The STATE of New York and New York State Department of Transportation, Defendants.
Jonathan D'Agostino & Associates, P.C., by Glen Devora, Esq., for Claimants. Fabiani Cohen & Hall, LLP, by Michael P. Tobin, Esq., for Defendants.
Jonathan D'Agostino & Associates, P.C., by Glen Devora, Esq., for Claimants.
Fabiani Cohen & Hall, LLP, by Michael P. Tobin, Esq., for Defendants.
ALAN C. MARIN, J.
The defendant State of New York has moved to dismiss on grounds of untimeliness the claim of Michael Tartaglione, which arose from his accident at a construction site in Richmond County. Mr. Tartaglione opposes the motion and cross moves for late claim relief under section 10(6) of the Court of Claims Act (the “Act”).
Inasmuch as the claim of Rosemarie Tartaglione is derivative of her husband's, references herein to “claimant” and Tartaglione shall mean Michael Tartaglione.
It was 8:00 a.m. on the morning of December 10, 2013, and Tartaglione, an employee of CCA Civil Inc., was working at the entrance ramp to the Staten Island Expressway near North Gannon Avenue and Manor Road. He was “caused to slip on ice which accumulated on a metal plate ... and fall and be seriously injured ...” (paragraph 2 of the Claim, exhibit B to defendant's Affirmation in Support).
Timeliness
Section 10.3 of the Act provides that a claim for personal injury be filed with the Court and served on the Attorney General within 90 days from when the cause of action accrued, unless a notice of intention to file a claim is served on the Attorney General, in which case the 90–day window is extended to two years.
A notice of intention to file a claim does not have to be filed with the Clerk of the Court (subdivision 3 of section 10 of the Act).
Mr. Tartaglione served a notice of intention to file a claim on March 11, 2014, 91 days after his accident on December 10, 2013. The Court of Appeals has stated that “Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed ...” (Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992] ).
The failure to comply with the limitations of time contained in section 10 of the Court of Claims Act “constitutes a jurisdictional defect warranting dismissal of the claim (citations omitted).” Davis v. State of New York, 89 AD3d 1287 (3d Dept 2011). Even 91 days is too late: Dependable Trucking Co. v. New York State Thruway Authority, 41 A.D.2d 985 (3d Dept 1973), and Christian v. Medger Evers College of the City University of New York, UID No.2004–016–036, [Ct Cl, Marin, J., July 7, 2004]; see also Byrne v. State of New York, 104 A.D.2d 782 (2d Dept 1984), lv denied 64 N.Y.2d 607 (1985).
Cross Motion for Late Claim
Because claimant's pleading was untimely, Mr. Tartaglione needs permission to file a late claim under section 10(6) of the Act. In deciding an application therefor, the Court must consider whether: (i) defendant had notice of the essential facts constituting the claim; (ii) defendant had an opportunity to investigate the circumstances underlying the claim; (iii) defendant was substantially prejudiced; (iv) claimant has any other available remedy; (v) the delay was excusable; and (vi) the claim appears to be meritorious. These statutory factors are to be evaluated in their totality—the presence or absence of any particular one is not dispositive.
See Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979 (1982) ; Scarver v. State of New York, 233 A.D.2d 858 (4th Dept 1996).
The first three factors, notice, opportunity to investigate and prejudice, are closely related and can be considered together. Section 10(3) of the Act, as noted above, requires strict adherence, but there is an argument that for purposes of section 10(6), if 90 days is sufficient notice, then one day later may be reasonably sufficient. Furthermore, Tartaglione's motion papers contain some additional detail in the enclosed report by CCA Civil Inc.'s superintendent (exhibit D to the Affirmation in Support of Cross Motion and In Opposition to Defendant's Motion for Summary Judgment Affirmation). The report does not name any witnesses. On balance, these three factors are satisfied.
Brewer v. State of New York, 176 Misc.2d 337 (Ct Cl 1998).
Tartaglione fails to comply with the next factor on the existence of an alternate remedy: he has brought suit against the City of New York in Supreme Court, Richmond County (id., exhibit B). Claimant does not offer an excuse for the delay, which in any event would generally require proof of some kind of incapacitating illness (see Goldstein v. State of New York, 75 A.D.2d 613, 614 [2d Dept 1980], and Conroy v. State of New York, 192 Misc.2d 71 [Ct Cl 2002] ).
With regard to merit, the First Department has stated that “To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists (citation omitted)” (Sands v. State of New York, 49 AD3d 444 [2008] ). The information we have on Mr. Tartaglione's accident—date, place and what happened—is sufficient, as a general proposition, to satisfy the Sands standard.
However, it is unclear what the involvement of the State was on this particular construction job. (For a “legally defective” or “legally deficient” late claim, see Prusack v. State of New York, 117 A.D.2d 729, 730 [2d Dept 1986] ). While claimant does not point to any such involvement, defendant, for its part, does not refer to its absence. Mr. Tartaglione has included his verified complaint against the City of New York in the papers submitted to this Court (id., exhibit B). The complaint contains language that the City of New York owned the expressway ramp and operated, managed, controlled and maintained such premises and had entered into a contract with CCA Civil Inc., as general contractor, to perform certain construction work at the premises (id., paragraphs 7 through 11 and 24). Mr. Tartaglione is on the cusp of satisfying the Sands requisite that for merit that there must be “reasonable cause to believe that a valid cause of action exists.”
In sum, having considered the factors of section 10(6), this Court finds that Mr. Tartaglione may file a late claim. With that said, nothing herein shall be deemed to preclude a subsequent motion by defendant to dismiss the claim for lack of subject matter jurisdiction—namely, that the State of New York is not implicated in this case.
In view of the foregoing, and having reviewed the submissions of the parties, IT IS ORDERED that motion No. M–87292 is granted, claim No. 125788 is dismissed, and cross motion No. CM–87479 is granted. Within sixty (60) days of the filing of this Decision and Order, claimants shall serve and file a verified claim in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11–a thereof.
The following were reviewed: from defendant—a Notice of Motion and an Affirmation in Support (with exhibits A through D), and a Reply Affirmation to Motion to Dismiss and in Opposition to Claimant's Cross Motion; from claimant—a Notice of Cross Motion and Affirmation in Support of Cross Motion and In Opposition to Defendant's Motion for Summary Judgment (with exhibits A through D).