New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2000-017-609, Claim No. NONE, Motion No. M-62087


Motion for permission to file late claim granted.

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:
Carolyn Smith, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Elyse Angelico, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 20, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court considered the following papers on this motion:

1. Notice of Motion and accompanying papers.

2. Affirmation in Opposition

Claimant moves pursuant to Court of Claims Act § 10(6) for permission to file a late claim alleging that the State is liable for mouth injuries she sustained on May 6, 1999 when she bit into a piece of metal that was concealed in her breakfast food while incarcerated at Bedford Hills Correctional Facility. The Court notes as an initial matter that the application is defective in that it does not contain a proposed claim.

Court of Claims Act § 10(6) authorizes this Court to grant a claimant permission to file a late claim upon consideration of the following six factors, as well as others deemed relevant by the Court: (1) whether the delay in filing the claim is excusable; (2) whether defendant had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim has the appearance of merit; (5) 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 (6) whether the claimant has other available remedies. In evaluating a late-claim application, the Court is charged with weighing all of these factors, and the presence or absence of any one factor is not determinative (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

Claimant's failure to obtain an attorney to file her claim within the statutory 90-day period is not a reasonable excuse for her failure to file this claim in a timely manner and the absence of such an excuse weighs against a grant of leave to late file in this case (see, Sevillia v State of New York, 91 AD2d 792). However, it appears that defendant was made aware of the facts underlying this claim through a grievance filed by claimant in connection with the alleged incident. Claimant has appended to the instant application a series of statements that individually bear the stamp "Inmate Grievance" and indicate that each was received by Bedford Hills Correctional Facility on May 7, 1999, the day following the incident. Thus, the Court finds that defendant had notice of and an opportunity to investigate the facts underlying this incident and would not be substantially prejudiced by the late filing.

The Court must also consider whether claimant's proposed claim has the appearance of merit, which is a standard that is satisfied for purposes of a late-claim application where the claim is "not patently groundless, frivolous or legally defective" and where there is reason to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). The Court has given claimant's pro se submissions a generous construction and is thus satisfied that this standard has been met. According to a statement that was submitted by claimant to Bedford Hills Correctional Facility in connection with an inmate grievance filed the day after the incident, during breakfast on May 6, 1999 claimant bit into something hard in her cereal that appeared to have come from a sink. Claimant stated that thereafter she was treated by a dentist at the facility who filed her tooth and gave her pain medication. A statement given by inmate Barbara Washington indicates that she witnessed the event and observed claimant bite into a piece of metal while eating her breakfast. Inmate Washington also stated that she accompanied claimant on a visit to "Mr. Parise" in the mess hall to complain about the foreign object that was found in her food. A third statement, authored by M. Wilkens, who is not identified as either an inmate or employee, indicates that claimant entered the kitchen area and held up a metal piece that she claimed was found in her food. A fourth statement, authored by inmate Karen Washington, provides that she accompanied claimant to see "Officer Irwin" who removed the metal from claimant's food. While the Court is troubled by the fact that claimant has not submitted any medical records to support her application, the Court finds on balance that the aforementioned statements create a sufficient appearance of merit to her claim. Of course, the Court's determination that the claim has the appearance of merit is made solely in connection with this motion and claimant bears a greater burden of proof to prevail on the merits at trial.

Given that claimant does not appear to have any other avenue of redress for this alleged claim of personal injury and that a majority of the factors considered by this Court weigh in claimant's favor, this motion to file a late claim is hereby GRANTED.

Accordingly, claimant is directed to file and serve her claim in compliance with this decision and the provisions of the Court of Claims Act within thirty (30) days of receipt of a filed copy of this Decision and Order, and defendant shall thereafter have the time prescribed by law to file and serve an answer.

October 20, 2000
White Plains, New York

Judge of the Court of Claims