New York State Court of Claims

New York State Court of Claims

SIENA v. STATE OF NEW YORK, #2000-018-005, Claim No. None, Motion No. M-61085


Motion for permission to file a late claim is 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:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General of Counsel
Third-party defendant's attorney:

Signature date:
March 22, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this motion for permission to file a late claim pursuant to Court of Claims

Act §10(6). The Attorney General's office has taken no position on the motion per its letter to the

Court dated January 28, 2000. The Court considered the following documents:

Notice of Motion dated December 30, 1999 ..................................................1

Proposed Claim ...................................................................................2

Affidavit of Joyanne M. Amisano, Esquire in support.........................................3

Letter of Ed J. Thompson, Esquire, Assistant Attorney General, dated

January 28, 2000..............................................................................................................4

The proposed claim seeks $135,000 in damages for the negligence of the defendant in allegedly allowing movant to leave SUNY Health Science Center (hereinafter SUNY), on foot instead of in a wheelchair, on the same day he underwent a medical procedure under general anesthesia. Movant left the hospital in handcuffs, escorted by two Department of Correctional Services (hereinafter DOCS) employees. Movant became dizzy after climbing up 13 to 15 steps, lost his balance, and fell down the flight of stairs; unable to break his fall due to the handcuffs. Movant was treated at the emergency room for his injuries.

Court of Claims Act §10(6) allows a claimant who has failed to serve a notice of intention, or who has failed to file and serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court at any time before an action asserting a like claim against a citizen of the State would be barred under Article Two of the CPLR. (Court of Claims Act §10(6).) Claimant's motion is timely. (Court of Claims Act §10(6); CPLR §214(5).)

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act §10(6), and any other relevant factors.

The factors considered are:

1. Whether the delay in filing the claim was excusable;

2. Whether the state 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 appears meritorious;

5. Whether the failure to file or serve a timely claim or to serve a notice of intention on the attorney general resulted in substantial prejudice to the state; and

6. Whether the movant has any other available remedy.

Movant asserts that the delay in filing was due to the difficulty movant's attorney had in maintaining communication with him as a result of his frequent transfers within the DOC's system, as well as the difficulty in obtaining his records. This is not a sufficient excuse. A notice of intention to file a claim which does not require the specificity of a claim could have been timely served extending the time to file and serve a claim while allowing movant's attorney the time to obtain the necessary information. (See, Ouziel v State of New York, 174 Misc 2d 900; Nolley v State of New York, Court of Claims, filed June 4, 1997, Lane, J., Motion No. M-55372; Peterson v State of New York, 84 Misc 2d 296.)

The factors of notice, opportunity to investigate and prejudice, being intertwined, shall be addressed together. Movant asserts that since the incident occurred at the SUNY Health Science Center and movant was treated for his injuries at the SUNY Emergency Room, the State had

notice of the essential facts and an opportunity to investigate. However, merely because an incident occurs at a State facility or involves a State employee does not impute notice to the State. (See, Phillips v State of New York 36 AD2d 679; Bommarito v State of New York, 35 AD2d 458.) However, since defendant has not denied notice or an opportunity to investigate, and since no prejudice is alleged, the Court will find these factors weigh in favor of movant. (See, Cole v State of New York, 64 AD2d 1023; L. F. O'Connell & Assoc., Inc., v State of New York, 176 Misc 2d 697.)

The next factor, whether the proposed claim appears to be meritorious, is the most important. A proposed claim will be found to meet this factor if it is not patently groundless, frivolous or legally defective and upon consideration of the entire record, including the proposed claim, there is reasonable cause to believe that a cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc. 2d 1, 11.) No affidavit was submitted by anyone with actual knowledge of the facts. However, movant verified the proposed claim which the Court has relied upon to determine the appearance of merit. Accepting the allegations as true, there is reasonable cause to believe that a valid cause of action exists.

Finally, no information was provided by either side regarding whether movant has any other remedy. The Court speculates that since the incident occurred at a State owned facility, which as best as the Court can determine involved only State employees, it is unlikely that any other remedy exists. However, since movant did not address this issue the Court finds this factor weighs against granting the application.

Based upon the foregoing, and in balance of all the factors, the Court GRANTS movant's motion. Movant is directed to file and serve the proposed claim in accordance with the Court of Claims Act within thirty days of the date this order is stamped as filed.

March 22, 2000
Syracuse, New York

Judge of the Court of Claims