New York State Court of Claims

New York State Court of Claims

GOLDMAN v. New York, #2000-015-006, Claim No. None, Motion No. M-60557


The State can be liable for the negligent design and construction of a park bench even if it no longer owns the bench or the real property upon which the bench is located at the time of the accident, and on a late claim motion the allegations of the proposed claim with respect to ownership and control of the accident location must be deemed to be true.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
LaFave & Higgins, LLP
By: Cynthia S. LaFave, Esquire and Patrick J. Higgins, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Paul F. Cagino, Esquire, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 8, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of movant for an order pursuant to Court of Claims Act § 10 (6) permitting him to serve and file a late claim is granted upon the conditions that (1) the claim be served and filed within forty-five days of the date of filing of this decision and order and (2) the claim shall specifically allege that the State designed and constructed the bench if claimant intends to pursue such a theory of negligence. The proposed claim alleges that at approximately 2:00 p.m. on November 24, 1998 claimant was sitting on a bench in the Corning Preserve at 51 Proposed Erie Blvd., City of Albany, New York, when the bench collapsed causing claimant to strike the ground and one of the bench supports. Among other allegations of negligence, the proposed claim could be construed as alleging that the State of New York negligently designed and constructed the bench in that the supports were too far apart to provide protection against a collapse.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse offered for the failure to serve and file a claim or serve a notice of intention within 90 days of the accrual of the claim is that movant originally believed that the City of Albany owned, controlled and maintained the bench and the land where the incident occurred. A timely action has been pursued against the City of Albany and movant asserts that he only recently discovered through diligent investigation that the State may in fact be the owner of the bench and land where the incident took place. The excuse that movant may have commenced his initial lawsuit against the wrong party is not an acceptable excuse (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854) and that factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant's motion papers allege that the defendant had prompt notice of the underlying events, the opportunity to investigate and will not be prejudiced if late claim relief is granted. The assistant attorney general opposing the motion has not contested those allegations. As a consequence, this Court must accept those allegations as true for purposes of the motion (Schweickert v State of New York, 64 AD2d 1026). The factors of notice, opportunity to investigate and lack of prejudice are in favor of granting the motion.

As to the appearance of merit, defense counsel has submitted a statement by John E. Epting, Jr., stating that "The State of New York has no ownership nor maintenance responsibility in the area of this incident". Defense counsel argues that the area where the incident occurred is under the jurisdiction of the City of Albany and, therefore, the State cannot be liable for the claimant's injuries.

Paragraph 11 of the proposed claim alleges in pertinent part that the "State of New York and the New York State Department of Transportation are believed to own, operate and/or control the bench and the area in question, in whole or in part and are believed to have legal responsibility for the bench." In determining the potential merit of a proposed late claim the rule is that even where the State contends to the contrary, the factual allegations of the claim establishing the State's potential liability will be deemed to be true for the purposes of the motion ( Buffington v State of New York, 204 Misc 217). Consequently, the allegation in the proposed claim that the State owned, operated and controlled the bench and the area in question must be deemed to be true. Moreover, it appears that claimant may be alleging that the State was negligent in that it improperly designed and constructed the bench, although the proposed claim does not expressly so state. If claimant was successful in proving an allegation that the State negligently designed and constructed the bench it could be held liable even if it did not own or have maintenance responsibility for the land upon which the bench was located (Kaehler v North German Lloyd, 289 NY 407). Therefore, the Court will permit the claimant to serve and file a late claim premised, in part, upon a negligent design and construction theory of recovery conditioned upon any such cause of action being stated with reasonable clarity. As to the last factor, movant may have another available remedy through his lawsuit against the City of Albany (Warner v City of Albany, 262 AD 677).

A consideration of all of the statutory factors, especially the potential merit and lack of prejudice to the State, lead the Court to grant the motion.

March 8, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated October 7, 1999;
  2. Affidavit of Cynthia S. LaFave sworn to October 7, 1999, with exhibit;
  3. Affirmation in opposition of Paul F. Cagino dated January 4, 2000;
  4. Statement of John E. Epting, Jr. acknowledged on December 29, 1999;
  5. Reply of Affidavit of Patrick J. Higgins, sworn to January 12, 2000.