New York State Court of Claims

New York State Court of Claims

HAMM v. THE STATE OF NEW YORK, #2000-015-099, Claim No. NONE, Motion No. M-62295


Late claim relief granted regarding claims for conscious pain and suffering and wrongful death stemming from decedent's exposure to E. coli bacteria at Washington County Fair.

Case Information

TRINA M. HAMM, as Administratrix of the Estate of ERNEST L. WESTER
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:
Cade & Saunders, P.C.By: Kyran D. Nigro, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Motion No. M-62295 for an order permitting the service and filing of a late claim is granted on 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. On August 29, 1999, movant's decedent attended the Washington County Fair and consumed food and beverages from various vendors. It is alleged that as a result of such consumption movant's decedent contracted an infection resulting from exposure to the "e-coli virus" (sic). Movant's decedent died on September 10, 1999. The representative movant was issued Limited Letters of Administration by the Saratoga County Surrogate's Court on November 4, 1999.

By this motion made on August 31, 2000, movant seeks permission to pursue a claim for "pain and suffering, medical and funeral expenses and wrongful death" alleging negligence on the part of the State in permitting the water system at the fair, including wells and other sources of water, to be contaminated with the E. coli bacteria and allowing water from such water system to be used by vendors at the fair and consumed by the public, including movant's decedent.

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 proposed claim submitted on this motion appears to assert two causes of action, although not specified as such. The first cause of action seeks recovery for the decedent's conscious pain and suffering (see, EPTL 11-3.2(b)) and the second for wrongful death in which movant as a distributee would be entitled to recover funeral expenses (see, EPTL 5-4.1).

The first issue to be decided is whether the application for late claim relief is timely under article 2 of the CPLR. Ordinarily, timely service and filing of a claim or notice of intention to file a claim is a condition precedent to the maintenance of an action in the Court of Claims and the time frame provided in the Court of Claims Act may not be modified or supplemented by the tolling provisions contained in CPLR article 2 (Pelnick v State of New York, 171 AD2d 734). Such is not the case, however, with regard to late claim applications under section 10 (6) of the Act which specifically incorporates the provisions of article 2 (Kaplan v State of New York, 152 AD2d 417).

Section 210(a) of the CPLR provides that:
Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year after his death.
While inapplicable to a cause of action for wrongful death, CPLR 210(a) does apply to a cause of action for a decedent's conscious pain and suffering (Cohen v Winter, 144 Misc 2d 503). Here, the decedent's cause of action accrued on August 29, 1999 and the date of death, September 10, 1999, is well within the 90 day period provided in Court of Claims Act § 10(3) for commencement of an action against the State. Movant's application for late claim relief made on August 31, 2000, ten days prior to the one year anniversary of the death of Ernest Wester, is therefore timely relative to the cause of action for decedent's conscious pain and suffering (Williams v State of New York, 235 AD2d 776).

The Statute of Limitations governing a wrongful death cause of action is two years from the date of death (EPTL § 5-4.1; Charbonneau v State of New York, 148 Misc 2d 891). The application is, therefore, timely as to the cause of action for wrongful death.

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 excuses advanced for the failure to timely pursue the claim include the complexity of the case, the extensive investigation undertaken to determine the possible parties responsible for the contamination and the lack of access to results of the State Department of Health's investigation of the incident. These excuses must be viewed either as law office failure or indecision on the part of movant's counsel. Inaction on the part of an attorney is not an acceptable excuse and that factor weighs against granting the motion (Fenimore v State of New York, 28 AD2d 626). So too, law office failure has been held to be an unacceptable excuse for the failure to timely file (see, Nyberg v State of New York, 154 Misc 2d 199).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant's 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 movant 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 supporting affidavit 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 beverages, water and ice available at the fair were safe for use and consumption. By the foregoing factual allegations the movant has demonstrated potential merit sufficient to support a grant of late claim relief.

As to the last factor, it would appear to the Court that movant may possess a potentially viable action in Supreme Court against parties other than the State of New York.

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.

November 14, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 31, 2000;
  2. Affirmation of Kyran D. Nigro dated May 3, 2000;
  3. Proposed Notice of Claim dated May 3, 2000;
  4. Affidavit of Trina M. Hamm sworn to May 2, 2000;
  5. Affirmation in opposition of Michael W. Friedman dated September 6, 2000.