New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2000-011-571, Claim No. NONE, Motion No. M-61871


Synopsis


Claimants motion for permission to late file a claim is granted.

Case Information

UID:
2000-011-571
Claimant(s):
JOE D. MILLER and DOLORES MILLER
Claimant short name:
MILLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61871
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Gregory G. Hoover, Sr., P.C.(Jeanne N. Tully, Esq., of counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael C. Rizzo, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
August 23, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The proposed claim is based upon allegations that on February 16, 2000 Claimant an employeeof the Immigration and Naturalization Service, slipped and fell as he stepped from the parking lot onto a sidewalk at Ulster Correctional Facility in Napanoch. Claimant alleges that as a result of the fall he suffered a fractured skull, loss of hearing and loss of sense of taste.

When considering a motion for permission to late file a claim the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant, he was incapacitated for a time by the injuries he suffered when he fell and was unable to file a claim. However, he has admitted that he returned to work some seventy days after the accident and prior to the time for presenting a claim expired. Yet, he does not adequately explain how he was able to return to work but unable to consult with legal counsel regarding the filing of a claim.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. An accident report was prepared at the facility on the day of the accident thereby providing Defendant with notice and an opportunity to investigate. As a result, Defendant has not suffered substantial prejudice as a result of the delay in filing.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v New York StateThruway Auth., 92 Misc 2d 1). On that basis, the alleged failure to keep the walkway clear of ice provides the proposed claim with the necessary appearance of merit.

Though Claimant does not dispute an allegation by Defendant that workers' compensation benefits are available to him, the adequacy of that remedy is at least questionable given the severity of the injuries alleged.

On balance, consideration of the factors in CCA §10(6) weigh in favor of granting the motion. Claimant is to serve and file the proposed claim in the manner required by Court of Claims Act §11 within thirty days of service upon him of a file-stamped copy of this order.

August 23, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

  1. Notice of Motion dated June 9, 2000.
  2. Affirmation of Jeanne N. Tully, Esq., dated June 9, 2000 with exhibits annexed.
  3. Affidavit in Opposition of Michael C. Rizzo, Esq., sworn to the 30th day of June, 2000.
  4. Reply Affirmation of Jeanne N. Tully, Esq., dated July 7, 2000 with exhibit annexed.