The following papers were read on claimants' application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affirmation and Exhibit annexed; Affirmation in Opposition and Exhibits
The claimants seek permission to file a late claim against the State of New
York for personal injury resulting from a fall by claimant Gloria McKenna on a
walkway at Pier 40 at the Hudson River in New York County.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
According to the submission of claimants' counsel, notices of claim were filed
with the City of New York, and with the Hudson River Park Trust. Approximately
five months after the incident, claimants' counsel was informed by the insurance
carrier for the Hudson River Park Trust, a public benefit corporation which is
responsible for the maintenance of the premises on which the incident occurred
(Chapter 58, Laws of 1998, §7[a] ), that the area was undergoing
construction by the New York State Department of Transportation, whereupon this
application seeking permission to file a late claim was filed, six months after
the incident. As such, the delay in filing the claim was excusable.
Based upon the submissions, the defendant did not have notice of the essential
facts constituting the claim until it was served with this application, nor
would it have had reason to investigate the circumstances underlying the claim
until then. But the defendant has offered no factual support for the assertion,
in opposition to the application, that the "delay in filing the proposed claim
has substantially prejudiced the State in its ability to investigate the
underlying facts because of the transitory nature of the incident site since
movants' counsel states that the alleged accident site was under construction at
the time." Affirmation in Opposition, ¶12. See, Calzada v State of New
York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023,
In opposition, the defendant has submitted the affidavit of Osama Khalil,
Claims Engineer for the New York State Department of Transportation ("DOT"), in
which it is stated that the accident site was not under construction by DOT on
the date of the accident, and that there were no DOT construction contracts in
effect on that date with respect to that location.
In the face of this assertion, the claimants have offered nothing which might
otherwise suggest that the claim appears to be meritorious. Although the
aforementioned affidavit does not deny that the defendant is the owner of the
site, no allegation to that effect appears in the proposed claim, or anywhere
else in the claimants' application. Moreover, the claimants' application fails
to demonstrate that the defendant either created or had notice, actual or
constructive, of the allegedly dangerous condition which caused injury to
claimant Gloria McKenna. See, e.g., Curran v Fresh Meadows Country Club,
251 AD2d 531.
The failure to demonstrate that a proposed claim appears to be meritorious
weighs heavily against granting permission to file a late claim. McCarthy v
New York State Canal Corporation, 244 AD2d 57; Klingler v State of New
York, 213 AD2d 378; Savino v State of New York, 199 AD2d 254;
Prusack v State of New York, 117 AD2d 729.
The claimants do not deny that they have another available remedy, against the
Hudson River Park Trust.
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied.