Reply Affirmation of Larry Dorman, Esq. 6
Claimant, an inmate, was allegedly injured on January 5, 2000 while working at
a prison job at Moriah Shock Incarceration Correctional Facility located in
Essex County. Claimant states that he was assigned to a work crew whose duties
included moving fallen trees down a hill at a campground known as "Twin Valley."
He relates that eight inmates used a tool known as a "log carrier" to move one
log at a time down the hill. He alleges that, on January 5, 2000, the work site
was icy and slippery, creating a dangerous condition for carrying logs down the
hill in the log carrier. Claimant recalls that the inmates were instructed not
to use the log carrier. Instead, they were directed to move the logs by rolling
them down the hill. Claimant relates that five inmates were positioned behind
the log and inmates were positioned at each end of the log. The inmates at the
end of the log were supposed to control the log's speed, direction and momentum.
Claimant was assigned to the end of a log and, as the log began its descent on
the hill, he allegedly slipped on the icy surface. Claimant fell into the path
of the log and the log rolled over his leg. He reportedly sustained fractures
to his leg and ankle. Claimant seeks permission to late file a claim premised
The instant motion was filed before the expiration of the Statute of
Limitations for filing a like claim against a citizen (Court of Claims Act
§ 10) and therefore consideration of the statutory factors is
The factors weighed by the court on an application to late file include: (1)
whether the delay in filing 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 meritorious; (5) whether substantial prejudice resulted from
the failure to timely file and the failure to serve upon the Attorney General a
timely claim or notice of intention; and (6) whether any other remedy is
available (Court of Claims Act § 10). The court is afforded
considerable discretion in determining whether to permit the late filing of a
claim (see, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117).
The presence or absence of any particular factor is not dispositive (Bay
Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's & Firemen's Retirement System, 55 NY2d 979).
Claimant asserts as excuses for failing to timely file a claim his lack of
knowledge of the law, the fact that he is incarcerated and the nature of his
injuries. Ignorance of the filing requirements is not an acceptable excuse
(Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79
NY2d 753; Modern Transfer Co. v State of New York, 37 AD2d 756).
Similarly, the fact that a person is incarcerated does not excuse compliance
with the filing requirements (Plate v State of New York, 92 Misc 2d 1033,
1037). A claimant asserting physical injury as an excuse generally must submit
medical evidence, such as hospital records or a physician's affidavit,
substantiating the nature and extent of the injuries (see, Cabral v State of
New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613).
Claimant failed to include any medical evidence in the papers presented in the
current motion. The court concludes that claimant has failed to set forth an
acceptable excuse for not filing in a timely fashion.
The factors of notice, opportunity to investigate and substantial prejudice
will be considered together. Defendant's employees were present when the
accident occurred and were involved in transporting claimant for medical care.
Defendant therefore clearly had notice of the incident as well as ample
opportunity to conduct an investigation. The presence of notice and an
opportunity to investigate leads to the conclusion that defendant will not be
substantially prejudiced in defending the claim. The factors of notice,
opportunity to investigate and substantial prejudice all weigh in favor of
The merit factor is particularly important because it would be an exercise in
futility to permit a meritless claim to proceed (Savino v State of New
York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). The
test applied to the factor of merit is liberal, as the court merely considers
whether the papers submitted establish reasonable cause to believe a valid claim
exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,
11). Here, claimant alleges that on the date of the accident he was instructed
not to use the log carrier and, instead, he was directed to employ a method he
had not previously used for moving logs down the hill. He contends that the
conditions were unusually slippery and that, as a result of such conditions, he
slipped in the path of a rolling log. The court is satisfied that claimant has
established the low threshold of a meritorious claim for purposes of the instant
Claimant does not have any other available remedy.
Upon weighing and considering the factors set forth herein, the court grants
ORDERED that claimant's motion is granted, and he is directed to serve
his claim upon the Attorney General (either personally or by certified mail,
return receipt requested) and to file the claim with the Chief Clerk of the
Court of Claims (including the filing fee of $50, or an application for waiver
or reduction of the filing fee) within 45 days of service of a filed-stamped
copy of this order, such service and filing are to be in accordance with the
Court of Claims Act and the Uniform Rules for the Court of Claims.