New York State Court of Claims

New York State Court of Claims

Kirkland v. THE STATE OF NEW YORK, #2000-018-025, Claim No. NONE, Motion No. M-61414


Permission to file late claim granted, claimant directed to serve claim naming the New York State Thruway Authority and the New York State Canal Corporation within thirty days of receipt of a file stamped copy of the decision and order.

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 for the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has reviewed and considered the following papers on claimant's application

for permission to file a late claim:

Notice of Motion..........................................................................................................1

Affidavit of David A. Longeretta, Esq. with all exhibits attached thereto...................2

Affirmation of G. Lawrence Dillon, Esq., Assistant Attorney General in


The Court also considered counsels' oral arguments via telephone conference on May 30, 2000.

Claimant brings this motion seeking permission to file a late claim as a result of injuries sustained on September 26, 1999, when he tripped over a beam or pipe embedded in the Foresport Falls Dam while he was walking in an area designated for walking and sightseeing on the Dam. As a result of tripping over this beam or pipe, claimant fell down the dam suffering injuries. Claimant sought the advice of counsel on December 22, 1999, one day prior to the expiration of the 90 days within which to file a claim pursuant to the Court of Claims Act §10(3). Counsel tried to determine whether the New York State Canal Corporation owned the subject dam; however due to the limited time frame, he could not obtain the necessary information. The claim was prepared against the State of New York and filed and served upon an Assistant Attorney General. Claimant by this motion now seeks to assert a claim against the State Thruway Authority for its subsidiary corporation the New York State Canal Corporation. (Public Authorities Law §382)

Court of Claims Act §10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly 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 Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor is whether the delay in filing the claim is excusable. Claimant's counsel asserts that the delay is excusable because claimant did not seek legal advice until the 87th day after the incident, as a result of the extensive rehabilitation he underwent, due to the seriousness of his injuries; as well as the fact that claimant did not know that he had a cause of action for recovery of damages. Although physical incapacitation due to extensive injuries has been held to be a valid excuse under some circumstances, more than merely an attorney's averment of claimant's incapacitation is necessary. (See, Wolf v State of New York , 140 AD2d 692, [sufficient documentation in record to support finding that claimant was severely injured and necessitated prolonged hospitalization and convalescence thereafter]; Callahan v State of New York, 42 Misc 2d 740, [physician's affidavit supported severe injury and incapacitation]; Klinger v State of New York, 213 AD2d 378, [physician's explanation that claimant suffered a cerebral concussion and cervical strain for a unspecified period of time was insufficient].) An unawareness of one's legal remedies also is not a sufficient excuse. (See, Ouziel v State of New York, 174 Misc 2d 900)

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors weigh in favor of granting claimant's motion since claimant's counsel contacted both the New York State Thruway Authority and New York State Canal Corporation by telephone within the 90 days after the accident, and a claim was filed against the State by serving the Attorney General within that same time frame. Through these conversations and by filing the claim against the State of New York, there was adequate notice of the essential facts and an opportunity to investigate the substance of the claim. No prejudice will result if this claim is permitted to be filed and served.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Accepting claimant's allegations as true for purposes of this motion, if the New York State Canal Corporation owns the Foresport Falls Dam, the claim has the appearance of merit. (See, Sessa v State of New York, 88 Misc 2d 454, 458, aff'd 63 AD2d 334, aff'd 47 NY2d 976) The ownership of the Dam is still in question; however, that issue will be determined in the near future. For purposes of the merit of the claim, the Court will accept claimant's position regarding ownership and finds this factor weighs in claimant's favor.

The final factor is whether the claimant has any other available remedy. It is asserted on behalf of the claimant that no other source exists for claimant's recovery. Defendant does not deny this allegation.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS the claimant's motion to permit the late filing and serving of the claim. Claimant is directed to file and serve the claim naming the New York State Thruway Authority and the New York State Canal Corporation, a subsidiary corporation of the New York State Thruway Authority as defendants within thirty (30) days of receipt of a file-stamped copy of this decision and order. Service and filing of the claim shall be in conformity with all applicable statutes and court rules.

July 7, 2000
Syracuse, New York

Judge of the Court of Claims