Partner Nicholas Marino successfully fought off an appeal in a case filed against the State of New York in a personal injury action brought by an injured construction worker.
The claimant was allegedly injured while operating machinery during the rehabilitation of a bridge owned by the New York State Department of Transportation when the construction surface upon which he was working crumbled beneath him, causing him to fall. The claimant failed to file a claim for his injuries against the state within the one-year statutory time frame. The claimant timely moved for leave to file a late claim with the Court of Claims. Nick opposed the motion successfully, and the Court ruled that the claim was time barred.
Upon appeal, the claimant argued that the lower court’s decision had erroneously ruled that the balance of discretionary factor weighed towards dismissal. The claimant argued that the presence of state employees at the time of the accident provided them with sufficient notice of the occurrence and an opportunity to investigate. He relied upon his employer’s accident report. The claimant emphasized that no prejudice that would inure to the state in granting this relief.
In response, Nick argued that the mere presence of unidentified state employees was insufficient to establish actual or constructive notice of the plaintiff’s accident. He relied upon the absence of a contemporaneous accident report filed with or on behalf of the state. Particularly, he stressed that the state’s inability to conduct a contemporaneous investigation had resulted in irreparable prejudice, because the prevailing condition of the construction site could not be assessed. The Appellate Division, Second Department, affirmed, holding that the claimant had indeed failed to establish that the state would not be prejudiced by the belated claim, adopting Nick’s reasoning.
Nick has handled numerous catastrophic injury cases in New York and concentrates his practice on civil litigation, with particular focus on the defense of landlords and contractors in New York Labor Law, premises liability, environmental exposure, negligent security and motor vehicle litigation, from inception through trial.