New York State Court of Claims

New York State Court of Claims

RIDORE v. THE STATE OF NEW YORK, #2000-016-045, Claim No. None, Motion No. M-61488


Synopsis


Late claim motion involving slip and fall at Downstate Medical Center was denied.

Case Information

UID:
2000-016-045
Claimant(s):
CHRISTINE RIDORE
Claimant short name:
RIDORE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61488
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Mallilo & GrossmanBy: Francesco Pomara, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
July 13, 2000
City:
New York
Comments:

Official citation:

Appellate results:
Affirmed 724 NYS2d 352
See also (multicaptioned case)



Decision

This is the motion of Christine Ridore for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed underlying claim, it is asserted that as Ridore "was . . . exiting an elevator on the second floor of ... 450 Clarkin Avenue [at Downstate Medical Center], she was caused to slip and fall due to cleaning water on the floor . . ." Proposed Claim, ¶5.

In determining whether to grant this motion, six factors enumerated in the Act must be considered. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[1]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The first, second and third factors -- whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See William Kleen, The New York State Court of Claims: A Procedural Guide, 19 Trial Law Q 49, 59 (Spring 1988); Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986). In this case, claimant's attorney states that these factors are satisfied because an accident report was prepared by a hospital security guard immediately after the accident. It should be noted that claimant herself does not state that an accident report was prepared, but merely states that she gave the security guard her name, address and told him what happened. See ¶1 of the March 30, 2000 affidavit of Christine Ridore. Moreover, no such accident report is annexed to claimant's moving papers. However, defendant has not denied that such a report was prepared, nor has it opposed claimant's motion on the basis of the notice-opportunity-prejudice factors. In view of the foregoing, claimant satisfies these factors.

With regard to excuse, claimant's attorney apparently believed that Downstate Medical Center was owned and operated by the City of New York and thus initially sued that entity. Misapprehension as to which governmental entity is the proper defendant does not excuse late filing. See, e.g., Erca v State of New York, 51 AD2d 611, 378 NYS2d 328 (3d Dept 1976), aff'd mem 42 NY2d 854, 397 NYS2d 631 (1977). Claimant thus does not satisfy the excuse factor of the Act. As to an alternative remedy, it appears undisputed that claimant's sole remedy would lie against the state in this Court, and thus claimant satisfies that factor of the Act.

The final factor to be considered is the merit of the claim. Claimant states that after she fell, she noted that there was a floor cleaning machine and the floor was wet with water and detergent in the area of her fall. However, she has submitted no other evidence to describe or corroborate how the accident occurred. Moreover, she has submitted no evidence of her injuries – no doctor's affidavit or even any medical records. All that has been submitted is claimant's unsubstantiated three-sentence statement that due to pain, headaches, dizziness and loss of balance, she was treated by a chiropractice office and another medical office. Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to ascertain whether a claim appears meritorious: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." I cannot find that claimant has satisfied this standard.

In view of the foregoing, having reviewed the parties' submissions[2], IT IS ORDERED that claimant's motion is denied.



July 13, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
[2]The following were reviewed: claimant's notice of motion with affirmation in support and undesignated Exhibits including a proposed claim and the affidavit of Christine Ridore; and defendant's affirmation in opposition with Exhibit A.