New York State Court of Claims

New York State Court of Claims

McKENNA v. THE STATE OF NEW YORK, #2001-014-530, , Motion No. M-62796


Application for late claim 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):

S. Michael Nadel
Claimant's attorney:
David Kravetz
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 13, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 annexed.

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, 981.

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[1][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, 1024.

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.

April 13, 2001
New York, New York

Judge of the Court of Claims