New York State Court of Claims

New York State Court of Claims

CROCITTO v. THE STATE OF NEW YORK, #2000-015-057, Claim No. NONE, Motion No. M-61152


Ignorance of the law is not an acceptable excuse for failing to timely pursue a claim pursuant to the Court of Claims Act.

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):

Claimant's attorney:
Muller & MullerBy: Robert J. Muller, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for an order pursuant to Court of Claims Act § 10 (6) permitting the service and filing of a late claim is granted upon the condition that the proposed late claim[1] be served and filed within 60 days of the date of the filing of this decision and order. The proposed claim alleges that on August 29, 1999 the movant was a patron at the Washington County Fair held at the Washington County Fairgrounds, Town of Easton, New York and that, while at the fair, movant consumed food and water allegedly contaminated with the E. coli bacteria. The proposed claim avers that the State of New York, among others, organized, arranged and sponsored the fair and failed in its duty to provide safe water supplies for use by persons attending the fair. It is alleged that negligence on the part of the State permitted the water in Well No. 6 to become contaminated with the E. coli bacteria resulting in personal injuries to the movant. A notice of intention to file a claim was not served, nor was a claim served and filed, within 90 days of accrual of the event giving rise to this motion. The sole opposition of defense counsel is that movant has not set forth a valid excuse for her failure to timely institute a claim and that there has been no demonstration of merit since the "movant has provided no basis to conclude that the water system which was operated at the Washington County Fair was a public water system under the supervision or control of the New York State Department of Health or any other state agency" (paragraph 6 of the affirmation of Michael W. Friedman dated March 6, 2000).

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".

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 first issue is whether the motion is timely as the Court may permit the late filing of a claim only if a motion seeking such relief is made within the applicable limitations period set forth in article 2 of the CPLR (Williams v State of New York, 235 AD2d 776). The proposed claim sets forth a negligence theory and this motion is made well within the three year statute of limitation applicable to negligence causes of action pursuant to CPLR § 214. The motion is timely.

The excuse for the delay is that movant was inexperienced with the legal process and did not consult with an attorney until December of 1999. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, ____ AD2d ____, 697 NYS2d 278) and the excuse factor weighs against granting the application.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant asserts that the State had prompt notice of the E. coli contamination and defense counsel has not contested that assertion. Uncontested factual allegations made by the persons seeking late claim relief will be accepted as true for the purposes of the motion (Schweickert v State of New York, 64 AD2d 1026). Crediting movant's allegations concerning prompt notice to the State, the opportunity to investigate, and the lack of prejudice as true, those factors weigh in favor of granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970). In the Court's view, the movant has made the minimal showing of potential merit required for the granting of her motion through the allegations contained in her supporting affidavits.

As to the last factor, movant may possess a potential remedy through a personal injury action in Supreme Court.

A consideration of all of the factors leads the Court to grant the motion.

August 2, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated February 1, 2000;
  2. Affidavit of Elena A. Crocitto sworn to February 1, 2000;
  3. Affirmation of Robert J. Muller dated February 1, 2000, with exhibit;
  4. Notice of motion dated January 26, 2000;
  5. Affidavit of Elena A. Crocitto sworn to January 26, 2000;
  6. Affirmation of Robert J. Muller dated January 26, 2000, with exhibits;
  7. Affirmation in opposition of Michael W. Friedman dated March 6, 2000;
  8. Reply affirmation of Robert J. Muller dated March 10, 2000.

[1]Improperly denominated as a notice of claim.