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