The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affirmation in Support and Exhibits annexed; Affirmation in Opposition; Sur
Reply to Defendant's Affirmation in Opposition.
The claimant seeks permission to file a late claim alleging that she was
injured as a result of the defendant's negligence, when she was caused to trip
and fall "on one of the many decorative stones that was on the ground in a
poorly lit area" of a parking lot at the State University of New York at Old
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,
On the circumstances described by the claimant, the delay in filing a claim is
excusable. According to her affidavit (Exhibit B to claimant's submission), she
did not file a timely claim because she was unaware of the severity of her
injuries until some time after the accident, at which time she was advised by an
attorney she consulted that she had three years to commence an action. The
application herein was filed approximately a year after the accident.
In the absence of specific factual support of the defendant's 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. It appears from an
accident report prepared by a State University Police Officer, annexed as
Exhibit D to the claimant's submission, that the defendant was notified of the
accident on the evening it occurred.
Nor has the defendant provided any factual support for its assertion that the
location of the accident, stated in the proposed claim as "Campus Center parking
lot," is not adequately described to satisfy the requirements of Court of Claims
The claimant has not demonstrated that the proposed claim appears to be
meritorious. Neither the proposed claim nor the claimant's affidavit describes
the manner in which the defendant's alleged negligence caused her to fall.
See, Klingler v State of New York, 213 AD2d 378. In order to establish
the appearance of merit there must be factual allegations which identify the act
or omission upon which the State's liability is predicated. See, Berry v
State of New York, 115 AD2d, 153, 154. General and conclusory allegations
of negligence are insufficient to establish that the claim appears to be
meritorious. Witko v State of New York, 212 AD2d 889, 891; Calco v
State of New York, 165 AD2d 117, 119, lv denied 78 NY2d 852;
Simpson v State of New York, 96 AD2d 646; Sevillia v State of New
York, 91 AD2d 792.
Moreover, the claimant's application fails to demonstrate that the defendant
either created or had notice, actual or constructive, of the allegedly dangerous
condition which caused her injuries. See, e.g., Curran v Fresh Meadows
Country Club, 251 AD2d 531.
It does not appear that the claimant has any other available remedy.
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied, due to the failure to demonstrate that the claim
appears meritorious, which weighs heavily against granting permission to file a
late claim. McCarthy v New York State Canal Corporation, 244 AD2d 57,
lv denied, 92 NY2d 815; Klingler v State of New York, supra;
Savino v State of New York, 199 AD2d 254; Prusack v State of New
York, 117 AD2d 729. The claimant may have a meritorious claim; she has not,
on this submission, demonstrated that she does.