New York State Court of Claims

New York State Court of Claims

BURKE v. STATE OF NEW YORK, #2001-018-089, Claim No. NONE, Motion No. M-63058


Movants' motion to file a late claim denied after balancing the six factors in Court of Claims Act §10(6).

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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
June 6, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Movant[1] brings this motion seeking permission to file a late claim pursuant to Court of Claims Act Section 10(6). Defendant opposes the motion. The Court has considered the following documents in determining the motion:

Affidavit of Robert M. Weldon, Jr., Esq. in Support

with all exhibits attached thereto..............................................................1

Affidavit of Jodi J. Burke in Support....................................................................2

Affidavit of Paul V. Mullin, Esq. in opposition..................................................3

Affidavit of Richard Guanciale in Opposition......................................................4 The Court notes initially that no notice of motion was filed with the supporting affidavits as required by statute and court rules. However, the Defendant received notice of the return date of the motion, was aware of the relief requested by the supporting affidavits, submitted an opposing affidavit addressing the merits and has not claimed nor suffered prejudice, therefore, the Court will disregard the irregularity in Movant's motion papers. (CPLR 2001; Uniform Rules for the Court of Claims [22 NYCRR] §206.1(b); cf., Matter of Venner, 235 AD2d 805; Matter of LiMandri, 171 AD2d 747; Continental v Moscatiello,115 Misc 2d 617; Plateis v Flax, 54 AD2d 813) Movant asserts that on September 3, 1999, while attending the New York State Fair she fell in a hole in the cement sidewalk, where the cement meets the grass, just outside of the cattle barn, on the side by the Coliseum. As a result of this fall, Movant asserts that she suffered damages to her left knee, including cartilage damage.

In determining this motion the Court must give consideration to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor is whether the delay in filing the claim is excusable. Movant's counsel asserts that the delay in filing the claim was due to his research leading him to believe that several courts had jurisdiction over claims arising at the New York State Fairgrounds. As a result a summons and complaint was filed in the Jefferson County Clerk's Office, commencing an action in supreme court against the New York State Fair and the Department of Agriculture. It was not until a motion to dismiss that action was made that Movant's counsel discovered that the action should have been brought in the Court of Claims against the State of New York. Unfamiliarity with the law, and an error in identifying the correct party to sue does not excuse the failure to timely file. (See, Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540, lv. to app. den. 89 NY2d 815; Erca v State of New York, 51 AD2d 611, aff'd 42 NY2d 854)

The next factors, whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant argues that the State had notice of the essential facts, because she sent a letter certified mail return receipt to Richard Guanciale, Business Manager for the New York State Fair on September 28, 1999. The letter advised of the date of the injury, the location, and a description of the injuries Movant suffered. Within a week after sending the letter, Movant received a call and visit from Paul Esposito, a representative from Guardian Property and Casualty Adjusting, on behalf of the New York State Fair. Movant asserts that Mr. Esposito stated that Guardian would pay for all medical expenses as a result of the slip and fall. Movant's attorney continued to correspond with Guardian representatives and provided copies of Movant's medical records and pictures of the location of her fall. As a result of receiving notice, Movant argues that Defendant had the opportunity to investigate and will not suffer prejudice if permission to file a late claim is granted.

Defendant argues that since no incident report was made at the time of Movant's fall, the State did not receive timely notice and had no opportunity to investigate the scene as it existed at the time of Movant's fall. As a result the State would suffer prejudice if a late claim were permitted. Where notice is provided to an appropriate State employee, in a supervisory position, capable of initiating an investigation into the claim, adequate notice has been provided to the State. (Cf., Witko v State of New York, 212 AD2d 889; cf., Crawford v City University of New York, 131 Misc 2d 1013; Hampton v State of New York, Ct Cl, J. Marin, Filed December 22, 1999, Claim No. none, Motion No. M-60106) In this case, notice was provided within 25 days of Movant's fall to Richard Guanciale, the employee who maintains the accident reports for the New York State Fair, and directs the investigation into such incidents. Notice to Mr. Guanciale was sufficient to place the State on notice and provide an opportunity to investigate. Although Movant failed to make an incident report at the time of her fall, such immediate notice is not what is required; Court of Claims Act §10 only requires a potential claimant to serve a notice within 90 days of the incident. Although Movant did not provide notice in the proper form and manner under the statute, Defendant here received even more prompt notice than required by statute, and thus should not be heard to complain.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11) Movant's proposed claim is legally defective, it fails to set forth the manner in which Defendant allegedly caused Movant's accident, there are no facts to identify the act or omission upon which Defendant's liability is based. (See, Klinger v State of New York, 213 AD2d 378; Berry v State of New York, 115 AD2d 153; Heisler v State of New York, 78 AD2d 767) Movant has failed to indicate whether she is alleging that the State either created or had notice, actual or constructive, of the allegedly defective condition which caused her injuries. (See, Robinson v State of New York, Ct Cl, J. Nadel, Filed November 24, 1999, Claim No. 99415, Motion No. M-59727, Cross-Motion No. CM-59823) Additionally, the proposed claim is not properly verified in accordance with Court of Claims Act Section 11(b), which has been held to be a jurisdictional defect. (See, Martin v State of New York, 185 Misc 2d 799)

The final factor is whether the Movant has any other available remedy. Movant asserts that she has no other remedy. Defendant does not dispute this. This factor weighs in favor of granting the application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES, without prejudice, Movant's application.

June 6, 2001
Syracuse, New York

Judge of the Court of Claims

[1] The term movant will refer to Jodi J. Burke, unless specified otherwise, since the claim of Gordon Burke is solely derivative in nature.