Torres v. State

• Decision Date: 14 April 2014
• Docket Number: # 2014-028-508,Claim No. 123637,Motion No. M-84370
• Parties: CHRISTIAN TORRES v. THE STATE OF NEW YORK
• Court: New York Court of Claims

CHRISTIAN TORRES v. THE STATE OF NEW YORK

# 2014-028-508

Claim No. 123637

Motion No. M-84370

New York State Court of Claims

April 14, 2014

Synopsis

SUMMARY: Motion for permission to file a late claim is granted. The fact that Movant failed to appreciate the extent of his injuries does not, in the circumstances here, present a reasonable excuse for delay. The fact that a supervisor with authority to initiate investigation of the incident was on the scene and did begin an investigation establishes that the State had adequate notice.

Case information

UID:	2014-028-508
Claimant(s):	CHRISTIAN TORRES
Claimant short name:	TORRES
Footnote (claimant name) :
Defendant(s):	THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	123637
Motion number(s):	M-84370
Cross-motion number(s):
Judge:	RICHARD E. SISE
Claimant's attorney:	LAW OFFICES OF PETER P. TRAUB

BY: PETER P. TRAUB, ESQ.
Defendant's attorney:	HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL

BY: Robert E. Morelli, Esq.

Assistant Attorney General
Third-party defendant's attorney:
Signature date:	April 14, 2014
City:	Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read on Movant's motion for permission to file an untimely claim pursuant to Court of Claims Act §10 (6):

1. Notice of Motion and Supporting Affirmation of Peter P. Traub, Esq., with annexed Exhibits including Affidavit of Christian Torres;

2. Affirmation in Opposition of Robert Morelli, AAG, with annexed Exhibits, including affidavit of Timothy Byrne;

3. Reply Affirmation of Peter P. Traub, Esq.; and

4. Further Reply Affirmation of Peter P. Traub, Esq., with annexed Exhibit.

Filed papers: None

Movant's proposed claim (Traub affirmation, Exhibit 1) alleges that on July 21, 2013, at approximately 3:30 p.m., Movant tripped and fell as he was playing a game of touch football on the beach at Field No. 4 in Robert Moses State Park. The fall was caused, it is alleged, by a "metallic whole section of snow fence" that was buried in the sand of that beach. Defendant's liability is premised on its failure to realize either that the snow fence was at that location or that a section of snow fencing was missing, and other acts or omissions that violated its duty to keep the area in a reasonably safe condition.

In falling, Movant impaled his right knee on a twisted metal wire extending out from the snow fence section. Park Officers arrived to render first aid, and then the Park Manager, Tim Byrne, came to the scene. He called the police, rinsed Movant's knee with fresh water, got him a wheelchair, made arrangements for Movant to be moved, and took photographs of the scene (Torres affidavit, ¶ 3). In addition, Byrne dug the snow fence out of the sand, removed it from the scene and threw it in the trash. Movant was taken by ambulance to Samaritan Hospital where the knee was given a more thorough cleaning and he was given a tetanus shot. Movant was told that the wound did not have to be sutured. He was referred to another hospital for x-rays, which revealed nothing unusual. An MRI was discussed at that time, but Movant was informed that that procedure would have to be prescribed by an orthopedic doctor.

Movant lacked any medical insurance and therefore was unable to afford an orthopedic examination. He applied for Medicaid and was approved on August 30, 2013, but the earliest appointment he could get was in February 2014. Movant then applied for health coverage from Emblem Health Care. That application was approved in mid-October, and on November 6, 2013 he was examined by a knee and joint specialist, who referred him for an MRI. On November 21, he was informed that the MRI revealed metal shrapnel in his leg and "derangement" of the patella. It was at that point that Movant sought legal counsel, and the instant motion was commenced shortly thereafter. Movant explains, "I had no intention of seeking legal redress for a simple puncture wound; however, upon learning of the more serious nature of my injury, the importance of this action became apparent" (Torres affidavit, ¶ 14). At the present time, Movant is receiving physical therapy while surgical options are being considered.

Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. A negligence action, asserted against a private citizen or organization, would have to be commenced within three years (CPLR 214), and this motion, brought approximately five months after the accident, is timely.

In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act § 10 (6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys., Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4^th Dept 1994]). The six statutory factors are as follows:

(1) whether the delay in filing the claim was excusable;

(2) whether the State had notice of the essential facts constituting the claim;

(3) whether the State had an opportunity to investigate the circumstances underlying the claim;

(4) whether the claim appears to be meritorious;

(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and

(6) whether the claimant has any other remedy.

In the instant application, counsel for Movant asserts that his delay in commencing an action in the Court of Claims was excusable because he initially believed his condition was not serious and because it took him several months to obtain information about the serious consequences of his fall. Movant's counsel argues that even if this is not accepted as a reasonable excuse for delay, the meritoriousness of the claim and the lack of any prejudice to Defendant would warrant granting the requested relief.

Research discloses that delayed Workers' Compensation claims have been allowed where the injured party was not aware of the extent of his injuries until after the time for making a timely claim had passed (Matter of Maiello v Electra Supply Co., 43 AD2d 779 [3d Dept 1973] [injury initially thought to be a muscle pull]; see also Claim of McEnaney, 80 AD2d 689 [3d Dept 1981] ["claimant gave notice as soon as she had knowledge of the nature and extent of the injury therefore timely notice was given"]). In late claim applications decided under the General Municipal Law, the applicant's lack of knowledge of the extent or seriousness of his injuries may constitute an acceptable excuse for delay, but only if there is a reasonable explanation as to why it took so long for the injury to become apparent or be diagnosed (Matter of Eaddy v County of Nassau, 282 AD2d 675 [2d Dept 2001]; Lefkowitz v City of New York, 272 AD2d 56 [1^st Dept 2000]). A similar rule has been applied in the Court of Claims (Padilla v the State University of New York and the State of New York, UID No. 2003-010-031 [Ct Cl Sept. 29, 2003], Ruderman, J. [there must be an explanation of why the injury took so long to become apparent and be diagnosed]).

Delay in consulting an attorney, even if there is uncertainty about the extent of injury, is also to be given consideration (id. ["the medical records (do not) provide an explanation for claimant's failure to timely seek the advice of an attorney]; see also Gaudio v City of New York, 235 AD2d 228 [1^st Dept 1997]). Furthermore, as Judge Midey of this Court has noted, in the Court of Claims injured parties do not have to actually commence a lawsuit upon mere suspicion that the injuries are serious. They may instead serve a notice of intention to file a claim which provides additional time for the litigants to, among other things, determine the severity of their injuries (Swan v the State of New York, UID No. 2004-009-57 [Ct Cl Nov. 17, 2004], Midey, J.).

In the situation presented here, it is understandable that Movant did not immediately suspect that his injuries would be sufficiently serious to warrant a lawsuit. At some point, however, he became aware that there was at least a question about the nature of his injury. This is demonstrated by his efforts to, first,...