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