New York State Court of Claims

New York State Court of Claims

INDELICATO v. THE STATE OF NEW YORK, #2001-011-607, Claim No. NONE, Motion No. M-64085


Synopsis


Claimant's request for permission to late file a claim is denied.

Case Information

UID:
2001-011-607
Claimant(s):
DOUGLAS INDELICATO, 98 A 0323
Claimant short name:
INDELICATO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64085
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Douglas Indelicato, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved for permission to late file a claim in which he alleges that he wasinjured when he fell while in his cell.

When considering a motion for permission to late file a claim the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to claimant, the delay in presenting the claim is the result of his being transferred from one facility to another and his inability to ambulate.

Other factors to be considered are whether defendant had notice of the essential facts of the claim and an opportunity to investigate. Also to be considered is whether the delay in filing has caused substantial prejudice to defendant. Claimant has not addressed these factors in his affidavit.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exist (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1). In the proposed claim claimant has alleged that he was assigned to a cell that had a broken toilet that leaked water onto the floor. He also alleges that he slipped and fell one day while getting out of bed. However, he does not allege that a dangerous condition, including the presence of water on the floor, caused him to fall. In the absence of an allegation that some condition for which defendant was responsible caused him to fall, no cause of action is stated. Accordingly, the proposed claim is without merit.

On balance, consideration of the factors in CCA §10(6) weigh against granting the application. Accordingly, the motion is denied.


November 14, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Request for Permission to File a Late Claim filed September 20, 2001 with attachments
  2. Affirmation in Opposition of Eileen E. Bryant, Esq. dated October 4, 2001 with exhibit annexed