New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2000-014-541, , Motion No. M-62274


Application for permission to file a late claim is granted.

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):

S. Michael Nadel
Claimant's attorney:
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 26, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 annexed.

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 hospital."

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, 981.

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 792.

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 it did.

Having considered the relevant statutory factors, Bay Terrace, supra, it is hereby

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.

December 26, 2000
New York, New York

Judge of the Court of Claims