New York State Court of Claims

New York State Court of Claims

GAY v. THE STATE OF NEW YORK, #2000-016-108, Claim No. 102255, Motion Nos. M-61661, CM-62392


Late claim motion involving slip and fall at Family Court courthouse in Jamaica, Queens was denied.

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):
Alan C. Marin
Claimant's attorney:
Michael A. De Vito, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
January 3, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In the underlying claim, it is alleged that on January 12, 1999, Eloise Gay slipped and fell while entering the Family Court courthouse in Jamaica Queens "when she was caused to slip and fall due to an accumulation of water and/or other liquid substance present on the floor within said Courthouse immediately after the threshold of the second door of the main entrance and before the metal detectors." Claim, ¶10. This is defendant's motion to dismiss on the grounds that the claim was not timely served and filed. Claimant has cross-moved for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act").

Claimant had previously filed a claim based on the same incident – no. 100139. That claim was dismissed in an Order filed October 12, 1999 on the basis that it failed to comply with the particularity requirements of §11 of the Act, having stated only that while entering the courthouse, claimant "was caused to slip/trip and fall to the floor." Claimant subsequently filed and served the instant claim – no. 102255 -- on April 10, 2000. See, e.g., ¶4 of the May 4, 2000 affirmation of Susan J. Pogoda (the "Pogoda Aff. to motion").

Sections 10 and 11 of the Act provide that a claim such as this one must be served and filed within ninety days of accrual, unless a notice of intention to file a claim is served within such period, in which case the time to file and serve the claim itself is extended to two years after accrual. In this case, there is no indication that any notice of intention was ever served, and the claim itself was served and filed almost fifteen months after the incident involving Gay. She has thus failed to comply with §§10 and 11 of the Act.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). In short, this Court lacks jurisdiction over Gay's claim and defendant's motion to dismiss should be granted.

We thus turn to Gay's motion for permission to file a late claim. In determining whether to grant this motion, the 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 Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant notes that the initial claim was filed within 90 days and that an incident report was created at the time of the accident. As set forth above, however, the initial claim referred merely to claimant slipping and provided no details as to the accident. Moreover, the "Aided Report" which was prepared on the date of the accident merely states that claimant "slip[ped] and fell in front lobby." See Exhibit A to the Pogoda Aff. in opp. to cross-motion. Again there is no reference to any accumulation of water – clearly a transitory condition. On balance, Gay has failed to satisfy the notice-opportunity-investigation factors of the Act.

On the next factor, the availability of an alternative remedy, as set forth more fully below, to the extent that claimant's accident did not arise from the cleaning of the courthouse as contemplated by Judiciary Law §39-b, her cause of action would appear to lie against the owner of the courthouse. Nor has claimant provided an adequate excuse for her failure to timely file; as set forth above, the claim she filed during the statutory 90-day period failed to comply with §11 of the Act.

The final factor to be considered is the merit of the claim. As set forth in this Court's previous order, the only basis on which the state could be liable for Gay's accident is if it related to the cleaning of the courthouse: "[C]ommencing April first, nineteen hundred ninety-eight [i.e., before claimant's accident], the state shall be responsible for the cleaning of court facilities . . . " Judiciary Law §39-b.2.[2] "[T]he term ‘cleaning of court facilities' shall mean those services and activities that are necessary to insure that the interior of each court facility is and remains a clean and healthful environment in which to transact the business of the unified court system. These services and activities include, but are not limited to: removal of trash and debris; maintenance of appropriate standards of hygiene; painting; pest control; and replacement of consumable items such as light bulbs, soap, toilet paper and paper towelling. They also shall include the making of minor repairs in accordance with rules of the chief judge." Judiciary Law §39-b.1(b).

In this case, claimant states that she slipped "on an accumulation of standing water or other liquid . . . Prior to entering the courthouse I observed that although it was not raining, the ground outside the courthouse was wet, and there were no mats covering what appeared to be a marble floor in the entranceway . . ." ¶¶4 and 5 of the September 11, 2000 affidavit of Eloise Gay. I cannot find that the control of moisture tracked into the courthouse from outside would fall within the cleaning activities contemplated by Judiciary Law §39-b. Policies dealing with rain and snow removal are clearly distinct from the above quoted items contemplated by §39-b. Nor has claimant advanced any authority to the contrary.

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." See Prusack v State of New York, 117 AD2d 729, 498 NYS2d 455 (2d Dept 1986). In view of the foregoing, Gay does not meet this standard.

Accordingly, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-61661 is granted and claim no. 102255 is dismissed and IT IS FURTHER ORDERED that cross-motion no. CM-62392 is denied.

January 3, 2001
New York, New York

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).
  1. [2]On the prior motion, defendant submitted an uncontested affidavit that Gay's accident did not occur on property owned by defendant.
  2. [3]Along with the pleadings, the following were reviewed: defendant's notice of motion with affirmation in support and Exhibits A-B; claimant's notice of cross-motion with affirmation in support, the affidavit of Eloise Gay and Exhibits A-D; and defendant's affirmation in opposition with Exhibits A-C.