New York State Court of Claims

New York State Court of Claims

EPPS v. THE STATE OF NEW YORK, #2000-015-114, Claim No. NONE, Motion No. M-62516


Inmate claimant permitted to file late claim seeking damages for personal injury sustained in fall in cafeteria.

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:
Law Offices of Mark Kressner, EsquireBy: Alan Giordani, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 3, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of movant for an order pursuant to Court of Claims Act § 10 (6) permitting him to file and serve a late claim is granted upon the condition that a claim in conformity with Court of Claims Act § 11 (b) is filed and served within sixty days of the date of filing of this decision and order. Claimant's attorneys previously served a claim by personal service upon the office of the Attorney General on June 8, 2000 but failed to file it with the Clerk of the Court as required by section 11 (a) of the Court of Claims Act. Absent a properly filed claim this Court lacks jurisdiction (Chung v State of New York, 122 Misc 2d 676); Lurie v State of New York, 73 AD2d 1006, 1007, affd 52 NY2d 849; Bommarito v State of New York, 35 AD2d 458). Claimant now seeks permission to file a late claim.

Claimant attached a copy of the previously served claim verified on the 18th day of May, 2000. The Court will treat this document as the proposed claim for purposes of this application. The claim asserts a cause of action for personal injury arising from the alleged negligence of the State in permitting a dangerous condition to exist at a State correctional facility. Specifically, claimant alleges that on November 21, 1999 he slipped on water on the floor of the prison cafeteria and was propelled through a glass door which shattered causing glass fragments to puncture his right arm and shoulder, severing a nerve and resulting in a substantial permanent injury. Claimant was transported to the Ellenville Medical Center where he was treated and returned to the facility. He seeks $10,000,000 in damages for his injuries which include scarring, numbness, swelling, pain, diminished grip, weakness, stiffness and substantial loss of use of the right hand, arm and shoulder. In addition, claimant alleges injuries to his head, neck and back, the full extent of which are not presently known.

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).

Claimant seeks to assert a cause of action for personal injury which is subject to a three-year Statute of Limitations pursuant to CPLR § 214 (5). The application is, therefore, timely as measured from November 21, 1999, the date of claimant's accident.

Turning to the statutory factors, the excuse advanced for the applicant's failure to timely serve and file a claim is his belief that he would have been subjected to a disciplinary proceeding for solicitation by seeking a lawyer not identified on his list submitted to prison officials at the time of his incarceration. Claimant has not put forth a valid excuse. Claimant is presumed to know the law (see, Griffin v John Jay College, ____ AD2d ____, 697 NYS2d 278) which permits claimants who are not lawyers to file in this Court with or without legal assistance. His decision to wait until his release from prison in April, 2000 to seek an attorney to file a claim on his behalf does not excuse the late filing. The Court also is not persuaded by the attempt by claimant's counsel to raise a constitutional issue regarding denial of counsel, predicated upon the existence of a contact list generated at the time of claimant's incarceration. Defendant submitted as Exhibit A to counsel's affirmation in opposition to this motion a copy of DOC's Directive #4422 dated 6/12/97 which permits correspondence with lawyers and other individuals except as specifically prohibited therein. None of the prohibitions contained in the directive would have prevented this applicant from contacting a lawyer to represent him on this claim. This factor weighs in favor of the defendant.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together.

Despite some initial confusion stemming from the applicant's use of an alias at the time of his accident and the erroneous identification of the facility in which he was housed, defendant's counsel concedes in her affirmation in opposition that the State had notice of an accident involving Steven Donaldson at the Eastern Correctional Facility, Napanoch, New York at 5:50 p.m. on November 21, 1999. Counsel further concedes that the State had an opportunity to investigate the claim. The rather dramatic nature of the accident and the fact that the applicant was transported outside the facility for medical attention suggests that the details of this accident may have been memorialized in documents within the defendant's possession thus negating any prejudice to the State in its ability to defend the claim (Remley v State of New York, 174 Misc 2d 523, 524). The Court finds that the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

Defendant's attorney further concedes in her opposing affirmation that the applicant appears to have no other remedy except a possible action against the manufacturer of the glass door through which he fell. This factor, therefore, weighs in applicant's favor.

Finally, the defendant argues unpersuasively that the "proposed claim lacks merit." This argument is based on a misbehavior report issued in relation to the incident giving rise to this claim which indicates that the applicant was running toward the recreation area and hit the F-Dorm recreation door. Even if the information contained in the report were true it would merely be some evidence of the applicant's comparative fault and would not be a complete bar to recovery. This, of course, assumes the applicant can demonstrate that the State had actual or constructive notice of the dangerous condition and failed to remedy it within a reasonable time period prior to the accident. On its face, however, it cannot be said that the "proposed" claim is "patently groundless, frivolous or legally defective." The claimant herein has demonstrated to the Court's satisfaction that "there is reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967).

Consideration of all of the statutory factors leads this Court to grant the motion. Claimant shall file and serve the claim as directed at the head of this decision and order.

January 3, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 27, 2000;
  2. Affirmation of Alan Giordani dated September 7, 2000;
  3. Affidavit of Stanley Epps a/k/a Steven Donaldson sworn to September 14, 2000 with exhibit;
  4. Affirmation in opposition of Belinda A. Wagner dated October 23, 2000 with exhibits.
  5. Reply of Alan Giordani dated October 26, 2000.