Rosenhack v. State
| Decision Date | 01 March 1982 |
| Docket Number | No. M-26375,M-26375 |
| Parties | Justine ROSENHACK, Claimant, v. The STATE of New York and The State Insurance Fund, Defendants. Motion |
| Court | New York Court of Claims |
On December 18, 1978, the claimant, an employee of Howard Johnson's Restaurant, while in the course of her employment, slipped on a terrazzo-like floor and sustained a fracture to the neck of the right femur.
The next day an open reduction was performed and a pin applied. She remained hospitalized until January 3, 1979, when she was permitted to return to her home.
During this confinement at home which, she alleges, lasted three and one-half months the claimant required around-the-clock aid. For the next ten months she required trained help for eight hours each day. She alleges that during the entire fourteen month period she was in constant pain and she is now totally disabled.
Shortly after the accident claimant sought and did in fact receive Workers' Compensation benefits. The extended period of convalescence, she alleges, prevented her from filing a claim in this Court within the ninety-day period prescribed by statute.
The claimant contends that an employee injured in the course of employment is not barred from bringing a common law action sounding in tort against the employer's Workers' Compensation insurance carrier on the theory that the insurance carrier negligently inspected the premises and that injuries proximately resulted from the negligent inspection.
The defendant contends (1) that the medical condition of the claimant does not rise to the status of the reasonable justification for the late filing and (2) that within ninety days after the accident claimant applied for and received Workers' Compensation benefits and that the receipt of such benefits were tantamount to an election of remedies. Accordingly, the defendant contends claimant may not now pursue this claim against the State.
Lastly, the defendant argues that the claimant does not have a meritorious cause of action as required by subdivision 6 of section 10 of the Court of Claims Act.
On a motion to file a late claim the Court in exercising its discretion, must weigh all of the enumerated factors in subdivision 6 of section 10 of the Court of Claims Act and may consider other relevant factors brought to its attention. These factors need not exist conjunctively (Kelly v. State of New York, 57 A.D.2d 320, 395 N.Y.S.2d 311; affd. 45 N.Y.2d 973, 412 N.Y.S.2d 891, 385 N.E.2d 628).
Whether or not the Court's favorable discretion is warranted is based on the totality of circumstances rather than a favorable resolution on a majority of the six factors as enumerated (Hash v. State, Motion No. M-20411 [Orlando, J., Filed March 29, 1978]).
Claimant alleges that physical disability prevented her from filing a claim within the prescribed period of time. It is abundantly clear that the excuse need only be reasonable and it is not required that the claimant show a complete physical inability (Carmen v. State of New York, 49 A.D.2d 965, 373 N.Y.S.2d 698). The excuse must relate to the initial ninety-day period (Bloom v. State of New York, 5 A.D.2d 930, 172 N.Y.S. 70).
It is uncontradicted that the claimant was hospitalized for two weeks, operated on and generally laid up for a period of three and one-half months requiring a twenty-four hour-a-day sleep-in aide. The fact that she sought and received Workers' Compensation benefits is of no consequence as to a reasonable excuse. In any event the Court finds that her physical impairment does provide an adequate excuse for the delay in filing.
Notice, opportunity to investigate and substantial prejudice are so interrelated that these factors must be considered as a whole.
Claimant, in support of her allegations, claims that the State has in fact had the requisite notice and the opportunity to investigate. It cites a State Insurance file number in support of her allegation that the State knew of the incident, investigated it and provided her with Workers' Compensation benefits.
The defendant has not demonstrated to this Court that despite the delay in filing it cannot now prepare and proceed to trial, nor does it argue that the delay in filing has generated an unfair advantage to the claimant.
The State argues further that claimant has another available remedy since she was injured in the course of her employment. This Court on other occasions addressed this question and concluded that although Workers' Compensation benefits is an available remedy it is only a partial remedy and not sufficient to bar the relief requested pursuant to subdivision 6 of section 10 of the Court of Claims Act (Caruso v. State, Motion No. M-20264 Conklin v. State, Motion No. M-20479 [Hanifin, J., Filed April 19, 1978]).
Whether or not the claim appears to be meritorious must be among the first factors considered by the Court (Andreano v. Testa, 64 A.D.2d 1019, 409 N.Y.S.2d 302). It would be futile to permit a defective claim to be filed, subject to dismissal, even if the other factors as discussed tended to favor the granting of the request (Flaherty Corp. v. State of New York, 102 Misc.2d 438, 423 N.Y.S.2d 439).
This Court has on numerous occasions defined what is a meritorious cause of action. The claim must not be patently groundless, frivolous or legally defective and the Court upon consideration of the entire record must find that there is a reasonable cause to believe a valid cause of action does exist (Matter of Santana v. New York State Thruway Auth., 92 Misc.2d 1, 399 N.Y.S.2d 395; Plate v. State of New York, 92 Misc.2d 1033, 402 N.Y.S.2d 126).
Claimant argues that the State Insurance Fund failed to properly and adequately inspect the premises, and that such failure to adequately perform this duty imposed by the contract resulted in the damages alleged.
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