New York State Court of Claims

New York State Court of Claims

IGNACIO-O'DONNELL v. THE INCORPORATED VILLAGE OF MINEOLA, TOWN OF NORTH HEMPSTEAD, COUNTY OF NASSAU, and STATE OF NEW YORK, #2001-016-043, Claim No. None, Motion No. M-63218


Synopsis


Late claim motion arising from pot hole slip and fall was denied.

Case Information

UID:
2001-016-043
Claimant(s):
JEANNINE IGNACIO-O'DONNELL
Claimant short name:
IGNACIO-O'DONNELL
Footnote (claimant name) :

Defendant(s):
THE INCORPORATED VILLAGE OF MINEOLA, TOWN OF NORTH HEMPSTEAD, COUNTY OF NASSAU, and STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-63218
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
James T. Murphy, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Alan B. Berkowitz, AAG
Third-party defendant's attorney:

Signature date:
June 14, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1]: 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 requested[2], 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 New York, 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 supplied.

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. (unreported)[3], motion no. M-61488, aff'd, 724 NYS2d 352 (2d Dept 2001).

In view of the foregoing, having reviewed the parties' submissions[4], IT IS ORDERED that motion no. M-63218 is denied.


June 14, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys., Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  1. [2]It appears undisputed that claimant placed the claim in the mail on October 27, 2000 -- 90 days after the accident -- but that it was not received by defendant until October 30, 2000 – 93 days after. Contrary to claimant's assertion, service by certified mail on the attorney general "shall not be complete until the claim or notice of intention is received in the office of the attorney general." Court of Claims Act §11(a)(i). Accordingly, service on the attorney general was not timely in this case.
  2. [3]Decisions of the New York State Court of Claims can be found on its website at www.nyscourtofclaims.state.ny.us.
  3. [4]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A and B; defendant's affirmation in opposition with exhibits A-D; and claimant's reply affirmation.