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APPLICATION TO FILE A LATE CLAIM IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED; CRITERIA FOR ACCEPTING A LATE CLAIM UNDER THE COURT OF CLAIMS ACT DESCRIBED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined claimant’s application to file a late claim in this Labor Law 240 (1) action should have been granted. The criteria for allowing a late claim under the Court of Claims Act were described in some detail:

Upon our consideration of the six factors outlined in Court of Claims Act § 10 (6), we conclude that the court abused its discretion in denying claimant’s application insofar as claimant sought to assert a cause of action under Labor Law § 240 (1).

Several factors militate against granting claimant’s application. For instance, his excuse for failing to file a timely notice of intent was law office failure, which, as the court determined, is not an acceptable excuse … . Also, as the court noted, claimant has at least “a partial alternate remedy through workers’ compensation” … . With respect to three of the remaining four statutory factors, we agree with the court’s determination that defendant had notice of the essential facts constituting the claim, had an opportunity to investigate the claim and was not prejudiced by the delay … .

The most significant factor, however, is “whether the claim appears to be meritorious” (Court of Claims Act § 10 [6]) inasmuch as “it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request” … .

.. [D]ocumentation submitted by claimant indicates that, as he struggled to remove the window and lower it to the ground, the window allegedly “fell” on him, causing him to sustain injuries to his back.

Claimant’s submissions raise issues of fact whether he was injured by the application of the force of gravity to the window as he was moving it between “a physically significant elevation differential” … . Phillips v State of New York, 2020 NY Slip Op 00753, Fourth Dept 1-31-20

 

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