New York State Court of Claims

New York State Court of Claims

AGUILERA v. THE STATE OF NEW YORK, #2000-009-404, Claim No. None, Motion No. M-61148


Claimant's application to file a late claim is granted. Claimant's application for poor person relief denied, and his application for a reduction of the filing fee is denied as premature.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney General, Of Counsel.
Third-party defendant's attorney:

Signature date:
May 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has before it a motion requesting permission to late file a claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Motion (Affidavit) 1,2

Affidavit seeking poor person relief 3

Affirmation in Opposition 4

In his proposed claim submitted with these motion papers, claimant seeks to recover damages for personal injuries suffered by him allegedly occurring as a result of the State's negligence. He alleges that while an inmate at Cape Vincent Correctional Facility, he was instructed to operate a floor buffing machine, even though he was not trained to do so. While operating the machine, he ran over his foot and suffered injuries as a result. Claimant further alleges that this incident occurred on September 20, 1998.

Previously, claimant had served and filed a claim (Claim No. 99949) alleging the identical cause of action as set forth in the proposed claim which is the subject of this motion. The prior claim had been filed with Clerk of the Court of Claims on March 8, 1999, and was served on the Attorney General on February 20, 1999. By an order dated May 19, 1999, however, this Court had dismissed Claim No. 99949 based upon untimely service.[1] By that order, this Court determined that claimant's notice of intention had not been served upon the Attorney General within 90 days of accrual of the cause of action, and further determined that the claim had not been timely served and filed.

By this application, claimant now seeks, in essence, to reinstate the prior claim.

In order to determine an application for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 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 or file; and (6) whether any other available remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

As his excuse, claimant argues that he had deposited his notice of intention inside a mailbox maintained at the Cape Vincent Correctional Facility on December 8, 1998, a date which was well within the statutory time limit for serving his notice of intention. He therefore claims that the failure to timely serve his notice of intention was not his fault, but was due to the actions or inactions of personnel at the correctional facility and/or the United States Postal Service. This argument was previously considered and rejected by this Court in its decision to dismiss Claim No. 99949, and is similarly rejected herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Defendant's sole argument in opposition to this application is based upon prejudice, in that it would be unable to properly investigate the incident, and determine whether there were any witnesses, since approximately 17 months had passed since the alleged accident occurred.

Defendant fails to consider, however, that it did receive a notice of intention regarding this incident on January 15, 1999. Although this Court had determined that said notice of intention was not timely served, defendant did have notice of the alleged incident within four months from the alleged date on which it occurred. Furthermore, approximately five months after the incident occurred, claimant also served a copy of the claim upon the Attorney General (Claim No. 99949). Although this claim was ultimately dismissed by this Court, defendant clearly had notice of the facts upon which this claim is based within four or five months of its date of occurrence , and not the 17 months as set forth in defendant's affirmation in opposition (see Item No. 4). Defendant was therefore presented with an opportunity to investigate the facts surrounding the alleged incident at the time the notice of intention and the claim were separately served, and its arguments of prejudice set forth in its answering affirmation are unfounded.

In order to establish a meritorious claim, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). In his proposed claim, claimant has alleged negligence against the State in failing to properly train and instruct him in the operation of the machinery which allegedly caused his injuries. For purposes of this application, therefore, claimant has alleged a meritorious claim.

It does not appear that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth, and viewing all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimant should be allowed to file the proposed claim.

In this application seeking permission to file a late claim, claimant has also submitted a petition seeking poor person relief.

To the extent that claimant seeks a reduction of the filing fee imposed by Court of Claims Act, § 11-a, such application is premature, and the application for such reduction (as provided by CPLR § 1101[f]) should be made at the time that claimant files his claim permitted by this order.

In his petition, claimant also seeks the assignment of an attorney. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). As set forth above, this case is one for money damages, based upon allegations of negligence against the defendant. This case does not warrant the exercise of discretion in assigning counsel under the standards of Matter of Smiley, supra.

Accordingly, it is

ORDERED, that Motion No. M-61148 is hereby GRANTED, in part, and claimant is directed to serve his claim upon the Attorney General (either personally or by certified mail, return receipt requested) and to file his claim with the Chief Clerk of the Court of Claims within 30 days of service of a file-stamped copy of this order, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims; and it is further

ORDERED, that the claim to be filed must be accompanied either by the requisite filing fee or an application for reduction of said fee, as required by Court of Claims Act, § 11-a and CPLR § 1101(f).

May 4, 2000
Syracuse, New York

Judge of the Court of Claims

[1] See Order filed May 27, 1999 in response to Motion Nos. M-59282 and M-59303.