New York State Court of Claims

New York State Court of Claims

LIBBETT v. THE STATE OF NEW YORK, #2001-005-510, Claim No. 97634, Motion No. M-62557


Claimant's motion for permission to file a late claim and accept "Amended Claim" as claim is 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):

Donald J. Corbett, Jr.
Claimant's attorney:
Eugene Libbett,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Patrick B. Sardino, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim and accept an "Amended Claim" as the claim:

1, 2 Notice of Motion and Affidavit Annexed
  1. Opposing Affirmation
  2. Defendant's Supplemental Affirmation
Upon the foregoing papers, this motion is denied.

In this motion Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). The underlying cause of action accrued on November 3, 1997, when Claimant allegedly fell from the top bunk in dorm B-2 at Cayuga Correctional Facility (Cayuga).

Preliminarily the Defendant opposes the motion, in its supplemental affirmation, on the ground that the relief sought is not subject to my discretion inasmuch as the three year period allowed pursuant to CPLR 214(5) for bringing a personal injury action has passed without the commencement of the claim. While it is true that three years have passed, Claimant served and filed the motion herein on or about October 13, 2000, indeed Defendant's initial affirmation in opposition is dated October 18, 2000, and thus this motion was timely made prior to the expiration of the three year period, and I do indeed have jurisdiction over the motion and the discretion to grant the relief requested.

As an excuse for his failure to timely serve and file his claim within ninety days as required, Claimant asserts his ignorance of the law, and his reliance upon clerks in the law library at Cayuga. These excuses do not provide an acceptable excuse. Nonetheless, Claimant need not satisfy all six statutory factors of §10(6), in order to be successful (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979). Claimant asserts, without any factual disputation by Defendant whatsoever, that he served an "Intent to file a claim" upon the Defendant on November 17, 1997, some two weeks after accrual of the said cause of action. The Defendant, rather than addressing the substance of the notice of intent served upon it, asserts, in response to the motion, that so much time has passed that the Defendant would be prejudiced in trying to reconstruct what occurred, that it does not know whether there were any witnesses, and that "no amount of investigation" could uncover those facts. The Defendant fails to address the second and third factors under §10(6), to wit, that it was given timely notice of the essential facts underlying the claim, and was given the opportunity to investigate. Given Claimant's unrefuted assertion, accompanied by proof in the form of a return receipt card reflecting certified mail delivery on the Defendant on November 17, 1997, it appears that these factors favor the application. Similarly, Defendant's assertions of prejudice, given the timely notices above, and noting that the Claimant was at all times under the care, custody and control of the Defendant in a correctional facility, ring hollow. There does not appear to be any alternative remedy available to Claimant for his alleged injuries.

Thus, I will now examine the appearance of meritoriousness of the proposed claim, which Claimant has denominated as an amended claim. Claimant asserts that he was placed in the top bunk "in contradiction to his prior medical and physical limitations" including a birth defect of which Department Of Correctional Services officials supposedly were aware. Liability is also predicated on alleged negligence in the design and construction of the double bunk. It is here that the proposed claim suffers from inadequacy. First, no medical records, description or verification of the supposed physical limitation are presented for my consideration. Claimant does not describe this supposed limitation, and nowhere am I able to determine whether or how it might have affected him. A party seeking the Court's discretion must do something more than one who has timely served and filed a claim, and must do more than make bare, unsupported allegations. This deficiency also affects the vague, non-specific and unsupported allegations with respect to the design and construction of the double bunks and the double bunk sleeping areas. There are absolutely no explanations for this allegation, and it is impossible to tell if Claimant is alleging defective materials, a slippery floor, a construction defect, or whatever. There is no description of any act of negligence, merely that Claimant was injured. That, in and of itself, does not meet the recognized test of the appearance of meritoriousness, to wit, that the claim is not patently groundless, frivolous, or legally defective, and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). Here, the claim is nothing more than Claimant fell off the top bunk, and no act of negligence is alleged. I find that the proposed claim does not have the appearance of merit, and since it would be an exercise in futility to permit the filing of a claim which does not have the appearance of merit (Prusack v State of New York, 117 AD2d 729), I decline to exercise my discretion on Claimant's behalf. The motion is denied.

April 26, 2001
Rochester, New York

Judge of the Court of Claims