New York State Court of Claims

New York State Court of Claims

URBAN v. THE STATE OF NEW YORK, #2000-015-094, Claim No. None, Motion Nos. M-61910, M-62090


Claimant permitted to file late claim for personal injury arising from E. coli contamination of Washington County Fairground water well.

Case Information

WILLIAM C. URBAN and DEBORAH URBAN, Individually and as Parents and Natural Guardians of MICHAEL URBAN, an Infant,
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61910, M-62090
Cross-motion number(s):

Claimant's attorney:
E. Stewart Jones, PLLCBy: E. Stewart Jones, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 11, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Motion No. M-62090 for an order permitting the movants to serve and file a late claim is granted upon the condition that a verified claim setting forth the total sum claimed as required in Court of Claims Act § 11(b) shall be served and filed within 30 days of the date of filing of this decision and order. Motion No. M-61910 for an order pursuant to Court of Claims Act § 10 (6) permitting the service and filing of a late claim is denied as moot. These two motions seek identical late claim relief with the second motion having been made to correct alleged deficiencies contained in the first set of motion papers. Since Motion No. M-62090 is being granted the prior motion has been rendered moot.

On August 28, 1999, the infant plaintiff attended the Washington County Fair with his family and consumed various beverages including orangeade and Coca-Cola. It is alleged that two days later the infant began to suffer from an infection resulting from exposure to E. coli bacteria. On September 3, 1999, the infant was admitted to the hospital and treated for conditions relating to said exposure. By this motion, the movants seek permission to pursue a claim for personal injuries on behalf of the infant and a derivative claim on behalf of the parents, alleging negligence on the part of the State in permitting well no. 6 at the Washington County Fairgrounds to be contaminated with the E. coli bacteria and allowing water from that well to be used by venders at the fair and consumed by the general public, including the infant Michael Urban.

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 advanced for the failure to timely pursue the claim is that the attorney originally engaged by the movants failed to timely serve and file a claim or timely serve a notice of intention. Inaction on the part of a prior attorney is not an acceptable excuse and that factor weighs against granting the motion (Fenimore v State of New York, 28 AD2d 626).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movants' 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). Furthermore, this Court will take judicial notice of its own calendar (Stella v Stella, 92 AD2d 589) which contains other timely commenced claims against the State of New York arising from alleged E. coli contamination at the Washington County Fair during August of 1999. The timely service and filing of those prior claims provided the State prompt notice, the opportunity to investigate and establishes a lack of prejudice (Guifre v State of New York, 192 Misc 480). The factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

As to the issue of merit, all that the movants must establish is that the proposed claim has the appearance of merit in that "it is not patently groundless, frivolous, or legally defective and there is reason to believe that a valid cause of action exists" (Remley v State of New York, 174 Misc 2d 523, 524). The proposed claim, the factual allegations of which must be deemed to be true pursuant to the Schweickert decision, alleges that the State: undertook to establish well no. 6; undertook to test the water from well no. 6; approved the integration of well no. 6 into the water supply system; and represented to those attending the fair that the beverage, water and ice at the fair was safe for use or consumption. By the foregoing factual allegations the movants have demonstrated potential merit sufficient to support a grant of late claim relief.

As to the last factor, it would appear to the Court that movants may possess a potentially viable action in Supreme Court.

A review of all of the factors, especially the apparent lack of prejudice and potential merit of the proposed claim, persuades the Court that late claim relief is appropriate.

October 11, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 21, 2000;
  2. Affirmation of E. Stewart Jones, Jr. dated June 21, 2000;
  3. Proposed claim dated June 21, 2000;
  4. Affirmation in opposition of Michael W. Friedman dated July 3, 2000;
  5. Notice of motion dated July 13, 2000;
  6. Affirmation of E. Stewart Jones, Jr. dated July 13, 2000, with exhibits;
  7. Affirmation in opposition of Michael W. Friedman dated August 2, 2000, with exhibit.