Gavigan v. State

• Decision Date: 24 October 1991
• Parties: In the Matter of Timothy J. GAVIGAN, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 217

575 N.Y.S.2d 217

176 A.D.2d 1117

In the Matter of Timothy J. GAVIGAN, Respondent, v. STATE of New York, Appellant.

Supreme Court, Appellate Division,

Third Department.

Oct. 24, 1991.

Donohue, Sabo, Varley & Armstrong, P.C. (Kathleen L. Werther, of counsel), Albany, for appellant.

Bohl, Clayton, Komar & Della Rocca, P.C. (George H. Barber, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS and CREW, JJ.

WEISS, Justice.

Appeal from an order of the Court of Claims (Lyons, J.), entered October 23, 1990, which granted claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim.

The State contracted with Horizon Roofing & Sheet Metal, Inc. to install a new roof on the Saratoga Performing Arts Center in Saratoga County, which the State owns. On April 17, 1989, claimant, a Horizon employee, sustained serious personal injuries in an accident which occurred while he was pushing a wheelbarrow loaded with debris down a rampway made of two planks which led from a higher level to a lower level of the roof. Claimant avers that the rampway was improperly constructed and maintained and had an accumulation of slippery substances on the surface, thereby making the State liable as an owner for violations of Labor Law §§ 200, 240 and 241. Claimant did not file a notice of intention to file a claim or a claim proper within 90 days after the accident as required by statute (Court of Claims Act § 10[3]. By orders made May 29, 1990 and August 2, 1990, the Court of Claims denied separate motions for leave to file a late notice of claim, each without prejudice, the former for failure to demonstrate that the claim had merit and the latter because claimant failed to set forth the reasons which caused him to slip and fall. The court thereafter granted a third such motion, however, finding that enough of the factors delineated in Court of Claims Act § 10(6) were present to support its decision. This appeal by the State followed.

A determination by the Court of Claims to grant or deny a motion for permission to file a late notice of claim lies within the broad discretion of that court and should not be disturbed absent a clear abuse of that discretion (Matter of Donaldson v. State of New York, 167 A.D.2d 805, 563 N.Y.S.2d 366; see, Musto v. State of New York, 156 A.D.2d 962, 549 N.Y.S.2d 256; Matter of Bonaventure v. New York State Thruway Auth., 114 A.D.2d 674, 675, 494 N.Y.S.2d 247, affd. 67 N.Y.2d 811, 501 N.Y.S.2d 325, 492 N.E.2d 398). While the court must consider the six factors delineated in Court of Claims Act § 10(6), those factors are not exhaustive and the presence or absence of any one factor is not controlling (Matter of Donaldson v. State of New York, supra, 167 A.D.2d at 806, 563 N.Y.S.2d 366; Matter of Bonaventure v. New York State Thruway Auth., supra, 114 A.D.2d at 675, 494 N.Y.S.2d 247; see, Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981, 449 N.Y.S.2d 185, 434 N.E.2d 254; Malek v. State of New York, 92 A.D.2d 659, 460 N.Y.S.2d 165).

The record in this case shows that the Court of Claims identified and considered each of the factors in the statute. It is true that the court resolved against claimant the absence of a reasonable excuse for the delay. It also found entitlement to benefits under the Workers' Compensation Law to be an available alternate remedy and that claimant had failed to provide information with respect to the adequacy or inadequacy of those benefits. Additionally, the court held that notice...