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, proposed claim; Affirmation in Opposition and Exhibit
The proposed claim alleges that, at a time when the claimant was in the custody
of the New York State Department of Correctional Services, he sustained a knee
injury which was aggravated when he was transported to a hospital by van
"instead of being transported to a hospital by professional trained staff of the
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,
The defendant does not oppose this application on the basis of the statutory
factors of notice, opportunity to investigate, or prejudice caused by the delay.
Those factors are therefore 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 does not appear that the claimant has any other available remedy.
The defendant acknowledges that a notice of intention was timely served, albeit
by regular mail. Thus, the delay in filing the claim was caused by improper
service of the notice of intention (Court of Claims Act §11[a][i]), and is
not excusable. Matter of E.K. v State of New York, 235 AD2d 540, 541,
lv to app den 89 NY2d 815; Sevillia v State of New York, 91 AD2d
The gravamen of the claim is sufficiently stated to demonstrate the appearance
of merit. The defendant's opposition on this ground consists of argument that
it was not negligent for the defendant to transport the claimant in the manner
Having considered the relevant statutory factors, Bay Terrace, supra, it
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
in accordance with the provisions of Court of Claims Act §§ 11 and
11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it,
in accordance with the provisions of Court of Claims Act §11, either
personally or by certified mail return receipt requested, upon the Attorney
General, within 45 days of the date of the filing of this Order.