New York State Court of Claims

New York State Court of Claims

SCHENK v. THE STATE OF NEW YORK, #2001-005-504, Claim No. NONE, Motion No. M-60539


The mother of an adult developmentally disabled person is appointed as Guardian Ad Litem of her daughter, and her motion to file a late claim for a fall when disembarking, unsupervised, from a parked handicapped motor van is granted, finding that the allegations of permanent facial scarring meet the "serious injury" requirements of Insurance Law §5102(d).

Case Information

PATRICIA SCHENK, as Mother and Natural Guardian of JODY SCHENK, a Developmentally Disabled Person
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):

Donald J. Corbett, Jr.
Claimant's attorney:
Faraci & Lange, LLPBy: Paul K. Lange, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On November 30, 2000, the following papers, numbered 1 to 4, were read on motion by Claimant for appointment of Patricia Schenk as Guardian Ad Litem and for permission to file a late claim:

Papers Numbered

1, 2 Notice of Motion and Affidavits
  1. Opposing Affirmation
  2. Reply Affirmation
Upon the foregoing papers, this motion is granted.

In an Interim Order signed October 26, 2000, this motion was adjourned to allow papers for the appointment of a Guardian Ad Litem to be served. That order having been properly served, and there being no opposition thereto, Patricia Schenk is appointed as the Guardian Ad Litem of her daughter. Accordingly, I will now address the motion for permission to file a late claim.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). The underlying cause of action occurred on February 4, 1999, when Claimant, the mother of Jody Schenk, a developmentally disabled person, was advised that her daughter had been injured while trying to get out of the handicapped motor van in which Jody had been transported through the Finger Lakes Developmental Disability Service Office in Canandaigua. It is alleged that Jody was a resident at the New York State Residence Home in Canandaigua, and as such was being cared for by the Defendant State of New York. It is alleged that Jody is a severely developmentally disabled person with severe retardation and cerebral palsy. It is further alleged that the said handicapped motor van was parked and that staff members were assisting the residents from the van, and, while a staff member was escorting another resident to the Home, that Jody was left unattended in the van, with the mechanized ramp down at ground level. Jody apparently tried to leave the van, alone, and she fell to the ground outside the van and sustained a large laceration to her forehead, and certain other injuries.

A proposed claim is properly attached to the moving papers and this application has been timely made within the constraints of article 2 of the CPLR. Accordingly, I will now consider the statutory factors enumerated within Section 10(6).

No excuse is offered for the failure to have timely served and filed a claim within the 90 day period following accrual of the claim herein. However, it is contended, essentially without dispute, that the Defendant was on timely notice of the essential facts herein, and had a timely opportunity to investigate, inasmuch as the incident in question occurred while Jody was a resident of the Home in Canandaigua, and the Defendant, through its employees, advised Claimant of her daughter's injuries and arranged for the requisite medical care for Jody. Given the State's involvement therewith, it does not appear that there would be any prejudice, let alone the substantial prejudice contemplated by the statute, were I to grant this application. Similarly, there does not appear to be any alternative remedy available to Claimant.

To the extent that Defendant opposes the motion on the ground that the time is not set forth in the proposed claim, that argument is rejected. First, and foremost, Jody Schenk was in the care and custody of the Defendant at all relevant times herein, and the time alleged in the moving papers, to wit, February 4, 1999, is more than adequate to meet the "time" requirement set forth in Court of Claims Act §11(b). At the very least, the statute does not require the date and time; it merely says the time. For the purposes of this motion, with the circumstances extant, the time is sufficiently articulated. In any event, the specifics of the hour and minute are within the complete control of the Defendant, as Jody was injured while in its care and custody, and the only more specific time of which Claimant might be aware, would have come directly from the Defendant.

The Defendant opposes the motion on the ground that there is no merit, because it contends that the underlying incident involved the use and operation of a motor vehicle, because Jody Schenk fell while alighting from the handicapped motor van. Accordingly, the Defendant urges that the underlying claim herein falls within the penumbra of the Insurance Law article 51, generally known as the no-fault insurance law. First, I address the Defendant's contention that Claimant has failed to show that Jody suffered a "serious injury" as defined by Insurance Law §5102(d), noting the absence of a physician's affidavit setting forth the nature of the injuries. In addition to Claimant's counsel's description of lacerations and "avulsion", Jody's mother (Claimant), in her Reply and Supplemental Affidavit, avers, under oath, that the "extensive lacerations have healed leaving [Jody] with scars which are clearly evident and disfiguring." I therefore find that although Claimant does not recite verbatim the statutory language, her reference to permanent facial scarring is enough to fall within the penumbra of serious personal injury (Zulawski v Zulawski,170 AD2d 979 [Fourth Dept.]). "The standard by which significant disfigurement is to be determined within the meaning of that statute is whether a reasonable person would view the condition as unattractive, objectionable, or as the subject of pity or scorn (citations omitted)." Furthermore, this is not a motion for summary judgment, where perhaps the characterization of the nature of the scarring would benefit from a doctor's description or photographs, or measurements (cf., Cushing v Seemann, 247 AD2d 891; Judd v. Walton, 259 AD2d 1016; Pickman v. Musclow, 249 AD2d 958). I am satisfied here that Claimant fulfills the Fourth Department's expectation that a reasonable (albeit a relative) person's description of the scars as clearly evident and disfiguring is synonymous with unattractive and objectionable.

In any event, I am also not persuaded that the incident, falling from a parked and stationary handicapped van, necessarily invokes article 51 of the Insurance Law. Here the accident is alleged to have occurred while exiting the van when the mechanized ramp was at ground level, and the allegations of negligence revolve primarily around the lack of supervision, and have nothing to do with the vehicle per se, unlike the defective grab handle in Dermatossian v New York City Transit Authority, 67 N.Y.2d 219.

In sum then, irrespective of whether article 51 of the Insurance Law is implicated at all, I find the Claimant's description is nonetheless sufficient to allege a serious personal injury for the purposes of demonstrating the appearance of meritoriousness of the proposed claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). Accordingly, after balancing all the statutory factors, and upon all the papers before me, I deem it a provident exercise of my discretion to grant the motion and permit the late claim to be filed. Claimant shall have 30 days from service of a file-stamped copy of this order to serve and file the proposed claim, properly verified, inter alia, in accordance with Court of Claims Act §§10 and 11, and the Rules of the Court.

March 7, 2001
Rochester, New York

Judge of the Court of Claims