This is the motion of Jeannine Ignacio-O'Donnell for permission to file a late
claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the
proposed claim it is asserted that claimant fell when she stepped into a pothole
in front of 254 Jericho Turnpike in Mineola. Subdivision 6 of §10 of the
Act enumerates six factors to be weighed in connection with a late claim motion,
although the six are not necessarily exhaustive, and the presence or absence of
any particular one is not controlling
whether (1) the delay was excusable; (2) claimant has any other remedy; (3)
defendant had notice of the essential facts constituting the claim; (4)
defendant had an opportunity to investigate; (5) defendant would be
substantially prejudiced; and (6) the claim appears to be meritorious.
As to excuse, claimant's counsel asserts that claimant first appeared at his
office 89 days after the incident and he was "uncertain as to specific
municipality liability respecting claimant's injuries." Claimant served
defendant by certified mail, return receipt
, but "inadvertently overlooked"
filing a claim with the Clerk of the Court. Law office failure is not a
sufficient excuse for the purposes of the Act. See, e.g., Almedia v State of
, 70 AD2d 712, 416 NYS2d 443 (3d Dept 1979).
As to an alternate remedy, the caption in the proposed claim lists multiple
entities aside from the state, over which the Court of Claims has no
jurisdiction, i.e., the Village of Mineola, the Town of North Hempstead
and the County of Nassau. However, neither party has addressed in their papers
the issue of whether viable claims exist against such entities, i.e.,
whether an alternate remedy in another forum exists.
The next three factors covering notice, opportunity-to-investigate and
prejudice are closely related and may be considered together. Brewer v State
of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this
case, defendant first received a copy of a claim 93 days after claimant's
accident. Defendant makes much of the fact that as originally served, the claim
did not include the state in the caption, but rather only the other entities
described above. According to defendant, later, on December 13, 2000, another
claim was served in which the state had been added to the caption. However,
defendant did answer the initial claim, which was served only three days after
the statutory period ended. On the other hand, claimant has not asserted that
any accident or police report was prepared. Nor has there been any suggestion
that the pothole was documented by photograph or otherwise. On balance,
claimant is at best on the cusp of satisfying these three factors.
The final factor to be considered is the merit of the claim. While claimant is
quite descriptive as to the location of the pothole, the claim is otherwise
quite sparse. For example, the only information provided as to the pothole
itself is that it was 12-18" in diameter. No depth is provided, nor is any
detail provided as to how the accident happened. Moreover, the description of
claimant's injuries is limited to the following: "Pain and suffering, including
but not limited to left foot, personal injuries, disability, confinement to bed
and home, medical and hospital expenses." No medical records, doctor's
affidavit, or even claimant's own affidavit as to her injuries have been
Matter of Santana v NYS Thruway Authority
, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to
ascertain whether a claim appears meritorious: (i) the claim "must not be
patently groundless, frivolous or legally defective" and (ii) upon consideration
of the entire record, including the proposed claim and any exhibits or
affidavits, "there is reasonable cause to believe that a valid cause of action
exists." I cannot find that claimant has satisfied this standard. See also
Ridore v State of New York,
, Ct Cl filed 7/27/00, Marin J.
, motion no. M-61488,
, 724 NYS2d 352 (2d Dept 2001).
In view of the foregoing, having reviewed the parties'
, IT IS ORDERED that motion no.
M-63218 is denied.