You are here: / / APPLICATION TO FILE A LATE CLAIM IN THIS LABOR LAW 240 (1) ACTION SHOULD...
,

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

 

You might also like
TRAFFIC STOP WAS SUPPORTED BY REASONABLE SUSPICION DESPITE THE DMV COMPUTER IMPOUNDMENT RECORD’S CAUTIONARY STATEMENT THAT THE VEHICLE SHOULD NOT BE CONSIDERED STOLEN (FOURTH DEPT).
DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE DENIAL OF THE ORAL APPLICATION FOR A JURY TRIAL IS PROPERLY CONSIDERED ON APPEAL FROM THE FINAL JUDGMENT, EVEN THOUGH NO FORMAL MOTION ON NOTICE WAS MADE (FOURTH DEPT).
FAILURE TO RULE ON A PORTION OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).
THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT, WITHOUT A WARRANT, THREE DAYS AFTER THE SHOOTING, BASED UPON THEIR INVESTIGATION WHICH INCLUDED VIEWING VIDEO SURVEILLANCE TAPES; AN ARREST IN A PUBLIC HALLWAY OF AN APARTMENT BUILDING DOES NOT VIOLATE “PAYTON;” TWO DISSENTERS WOULD HAVE AFFIRMED COUNTY COURT’S RULING THAT THE POLICE DID NOT HAVE PROBABLE CAUSE (FOURTH DEPT).
IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.
THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME DEFENDANT LEFT THE RESIDENCE AND WAS ARRESTED; THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS SEARCH OF THE HOUSE AFTER DEFENDANT’S ARREST; THE WEAPONS SEIZED SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT
WHETHER TO INSTRUCT THE JURY ON THE EXTREME EMOTIONAL DISTURBANCE (EED) AFFIRMATIVE DEFENSE MUST BE DETERMINED BASED SOLELY UPON THE PEOPLE’S PROOF AT TRIAL; IT WAS (HARMLESS) ERROR FOR THE COURT TO MAKE THAT DETERMINATION PRIOR TO TRIAL (FOURTH DEPT).
THE SIX-MONTH PERIOD FOR REFILING A COMPLAINT AFTER DISMISSAL (CPLR 205(A)) BEGAN TO RUN ONLY WHEN THE APPEAL OF THE DENIAL OF THE MOTION TO VACATE THE DISMISSAL WAS EXHAUSTED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MEDICAL MALPRACTICE ACTIONS REINSTATED AGAINST SEVERAL DEFENDANTS; TWO JUSTICE... UNRESOLVED QUESTIONS OF FACT CONCERNING WHETHER THE CONSTRUCTION OF A WHOLE...