The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Motion for Permission
to File a Late Claim and attachments; Affirmation in Opposition and Exhibit
annexed; Amended Complaint and Reply to Defendant's Opposition and exhibits
attached; Reply Affirmation.
The claimant seeks permission to file a late claim alleging he was injured as a
result of negligence on the part of Court Officers employed by the defendant.
Specifically, he alleges that while in the custody of Court Officers at a court
building in Suffolk County, he was transported by way of a staircase instead of
an elevator; the staircase was unsafe and poorly lit; and that as a result,
while handcuffed behind his back, he fell.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
According to the claimant's submission, he originally sought to commence an
action against Suffolk County, on the basis of the mistaken belief that the
officers were County employees. On the circumstances presented by the claimant,
the delay in filing the claim was not excusable.
In the absence of specific factual support of the State's perfunctory
opposition with respect to the statutory factors of notice, opportunity to
investigate, and prejudice caused by the delay, those factors are presumed to
weigh in the claimant's favor. See, Calzada v State of New York, 121
AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.
Upon the claimant's entire submission, the claim appears to be meritorious, in
that the claimant has specifically alleged the actions of the State upon which
the cause of action is predicated. But the proposed claim included in the
claimant's submission does not satisfy the requirements of Court of Claims Act
§11(b). It does not adequately describe the location of the incident, nor
does it describe in sufficient detail the alleged negligent conduct of the Court
Officers. While this information has been provided in the claimant's "Amended
Complaint and Reply to Defendant's Opposition," Court of Claims Act §10(6)
requires that an application for permission to file a late claim must include a
proposed claim which contains all the information set forth in
It does not appear from the submissions that the claimant has any other
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied, with leave to renew upon submission of an application
which includes a proposed claim which contains the information required by