New York State Court of Claims

New York State Court of Claims

MORRISSEY v. THE STATE OF NEW YORK, #2000-015-100, Claim No. NONE, Motion No. M-62187


Late claim relief denied where statutory factors weighed in favor of State. Claimant sought damages for personal injury sustained in fall at State park theatre.

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:
Thorn Gershon Towne Tymann & Bonnani, LLPBy: William B. Hoblock, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of movants for an order pursuant to Court of Claims Act § 10(6) permitting the service and filing of a late claim is denied. The proposed claim alleges that at approximately 10:30 p.m. on April 21, 2000 claimant Anne F. Morrissey fell in the aisle area near the back row of the balcony of the Little Theater in the Saratoga Spa State Park in Saratoga Springs, New York. It is alleged that claimant fell due to the negligent design, construction and maintenance of that area of the Little Theater. It is further alleged that Mrs. Morrissey sustained multiple fractures of her left wrist, tendinitis of her rotator cuff and other injuries to her arm and shoulder. James P. Morrissey asserts a derivative claim. The proposed claim seeks damages on behalf of Anne F. Morrissey in the amount of $700,000.00 and on behalf of James P. Morrissey in the amount of $50,000.00.

To timely pursue a claim arising from the negligence of a State employee or officer a claim must be served upon the Attorney General and filed with the Court within ninety days of accrual. Alternatively, a claim may be commenced by the service of a notice of intention upon the Attorney General within such ninety day period provided the claim itself is served and filed within two years following the accrual of the claim (Court of Claims Act § 10(3)). The movants served a notice of intention to file a claim upon the Attorney General's office by certified mail, return receipt requested on July 28, 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".

This motion is timely in that a cause of action for personal injury arising from the State's negligence is governed by the three year limitations period set forth in CPLR 214(5).

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 commence this claim are movants' ignorance of the applicable law and the existence of settlement negotiations with an insurance adjuster for the entity which produced the play performed on the night of claimant's fall. Movant does not state when such negotiations were concluded but merely asserts that she and the adjuster "spoke several times through the months of May, June and July." She further alleges that she and her husband met with their attorney on July 24, 2000 and, after having been informed of the Court of Claims filing and service requirements, immediately executed and served a notice of intention to file a claim. Ignorance of the service and filing requirements of the Court of Claims Act is not a valid excuse and this fact argues against granting the application (Matter of E.K. v State of New York, 235 AD2d 540).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The failure to establish that the defendant had prompt notice of the conditions which allegedly caused movant's fall is a strong factor in favor of denying an application for permission to serve a late claim (Johnson v New York City Tr. Auth., 181 AD2d 619). Mrs. Morrissey states that the defendant should have had notice of the facts and an opportunity to investigate since the theater management (not otherwise identified) was aware of her accident on the night it occurred. She does not allege that she completed or filed any type of accident report following the incident. This allegation does not establish actual notice to the State (Crawford v City University of New York, 131 Misc 2d 1013; Avila v State of New York, 131 Misc 2d 449). The record is devoid of any evidence that the "theater management" was employed by, or under contract to, the State of New York so that information imparted to such management should be imputed to the defendant.

The two cases cited by movants' attorney in his memorandum of law on the issue of notice are distinguishable. In DeFilippis v State of New York (157 AD2d 826), in addition to a minimal period of delay the Appellate Division, Second Department, found a lack of prejudice since the State had extensively investigated the claim and had received notices of intention to file claims from other litigants. So too, in Marcus v State of New York (172 AD2d 724) the Appellate Division found that the State had admittedly assigned an investigator to the claim and, accordingly, it did not appear that the State had been substantially prejudiced by the ten day delay in filing and serving the notice of intention to file a claim. The instant claimant has failed to establish that the State had prompt notice of the events giving rise to the claim, a fair opportunity to investigate, and that it will not be prejudiced if this application were granted.

The most important statutory 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, supra). Here, movants have failed to demonstrate potential merit. Neither the belated notice of intention to file a claim nor the proposed claim alleges that the defendant owned or controlled the Little Theater in the Saratoga Spa State Park at the time of claimant's accident. Nor is it alleged that the defendant actually designed or constructed the subject building. Mrs. Morrissey simply states in her affidavit that an entity known as the Homemade Theater was producing a play at the theater for which she had volunteered to usher on the night of her accident. Moreover, claimants failed to submit expert proof in admissible form tending to support their claim alleging the negligent design and construction of the area where the claimant fell (Nyberg v State of New York, 154 Misc 2d 199).

As to the last factor, it would appear that movants may have a remedy against the Homemade Theater and its insurer.

November 13, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 11, 2000;
  2. Affidavit of William M. Hoblock sworn to August 11, 2000, with exhibits;
  3. Proposed claim dated August 11, 2000;
  4. Notice of intention to file a claim dated July 26, 2000;
  5. Affidavit of Anne F. Morrissey sworn to August 11, 2000;
  6. Affidavit of James P. Morrissey sworn to August 11, 2000;
  7. Affirmation in opposition of Michele M. Walls dated September 13, 2000;
  8. Affidavit of William M. Hoblock in further support of claimants' motion to file a late claim sworn to September 19, 2000.