New York State Court of Claims

New York State Court of Claims

BERNARD v. THE STATE OF NEW YORK, #2000-007-043, Claim No. None, Motion No. M-61948


Claimant seeks permission to late file a claim for injuries sustained when a log rolled over his leg while he was assigned to a prison work crew at the Moriah Shock Incarceration Correctional Facility, Essex County. Motion granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Larry Dorman, P.C. (Larry Dorman, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Kevan J. Acton, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
August 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was August 2, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Larry Dorman,
Esq., Affidavit of Claimant, Proposed Claim 1, 2, 3, 4

Affirmation in Opposition of Kevan J. Acton, Esq. 5

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 upon negligence.

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[6]) and therefore consideration of the statutory factors is appropriate.

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[6]). 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 claimant.

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 motion.

Claimant does not have any other available remedy.

Upon weighing and considering the factors set forth herein, the court grants claimant's motion.

It is

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.

August 4, 2000
Plattsburgh, New York

Judge of the Court of Claims