New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2000-010-071, Claim No. NONE, Motion No. M-62432


Claimant's late claim application is denied.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 19, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Claimant's Supporting Affidavit, Notice of Intention to File Claim.........................................................................................................................1

Attorney's Affirmation in Opposition......................................................................2

Claimant has failed to include a Proposed Claim with his motion papers; the Court will construe the Notice of Intention to File Claim as the Proposed Claim. Claimant asserts that on May 15, 2000, he was doing pull-ups in the yard at Sing Sing Correctional Facility when the bar broke, causing injury to claimant's right thumb.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant's purported excuse is essentially ignorance of the law which is not an acceptable excuse (see, Powell v State of New York, 187 AD2d 848; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). Additionally, claimant's delay substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see, Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]).

Most significant is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). To show the appearance of merit of this negligence claim, claimant must allege and have a basis for the claim that there was a foreseeably dangerous condition that defendant either created or had notice of and failed to remedy within a reasonable time and that such failure was a proximate cause of claimant's injuries (see, Gordon v American Museum of Natural History, 67 NY2d 836). Claimant's unsupported self serving allegations are insufficient to establish the appearance of merit (see, Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]). Notably, claimant failed to submit a report, a witness statement, or a medical record establishing that defendant's alleged negligence was a proximate cause of the alleged accident (see, Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]).

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED (see, Qing Liu v City Univ. of N.Y., 262 AD2d 473).

October 19, 2000
White Plains , New York

Judge of the Court of Claims