New York State Court of Claims

New York State Court of Claims

WAID v. THE STATE OF NEW YORK , #2002-013-033, , Motion No. M-65468


Permission to file an untimely claim is granted, despite the fact that the reason for delay was clearly law office failure, where the other factors warrant granting the requested relief.

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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On September 18, 2002, the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Michael J. Cooper, Esq., with Annexed Exhibits

2. Affirmation in Opposition of James L. Gelormini, Esq., with Memorandum of Law Attached

3. Filed Papers: Claim in Claim No. 104912

Claimant's proposed claim alleges that on July 4, 2001, on B Block of Attica Correctional Facility, Claimant was injured when his right arm went through a glass pane on the shower room door. This motion was brought just over a year after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the Claimant has another available remedy. Contrary to the contentions of defense counsel (Gelormini Affirmation, ¶3), the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979), unless the proposed claim is so legally defective that it would be meaningless and futile to allow it to be filed (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967).

On August 1, 2001, Claimant served on the Attorney General a claim setting forth the same substantive allegations as those contained in the instant proposed claim. The following month, on September 17, 2001, this same claim was filed with the Court and assigned Claim No. 104912.[1] This claim was not verified, however, and counsel for the State rejected it as a nullity and returned it to Claimant's counsel (CPLR 3022). The claim was never re-served and, consequently, no answer has ever been filed (see, Waid v State of New York, Claim No. 104912, Motion No. M-65176, June 17, 2002, Patti, J. [UID No, 2002-013-025][2]). Thus, the reason for the delay in properly commencing an action is quite clearly law office failure, which does not constitute an acceptable excuse (Sevillia v State of New York, 91 AD2d 792; Block v New York State Thruway Auth., 69 AD2d 930), although some jurists have recognized that a court "may on some occasions feel impelled to protect clients from their lawyers" (Sessa v State of New York, 88 Misc 2d 454, 460, affd 63 AD2d 334, affd 47 NY2d 976).

Timely, adequate notice to the State of the essential facts constituting the claim was provided by the original, unverified pleading. Consequently, Defendant's opportunity to investigate the circumstances underlying the claim was not impeded, and permitting the untimely claim to be filed would not result in substantial prejudice to the State. Furthermore, it appears that Claimant does not have an available remedy against any party other than the State.

While the apparent merit of the proposed claim is challenged by Defendant, I find that Claimant has succeeded in establishing that it is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While it is true that the proposed claim itself does not describe in detail the nature of the alleged dangerous condition, in deciding a motion for permission to late file, a court may consider "the entire record, including the proposed claim and any affidavits or exhibits" to determine whether "there is reasonable cause to believe that a valid cause of action exists" (id., at 11). The papers submitted on the instant motion contain an allegation in the apparently unserved, unfiled claim (see, n. 1) that the shower door lacked a handle and that the facility was aware of this defect (Cooper Affidavit, Exhibit D) and a statement by Claimant's counsel that Claimant is prepared to testify that the shower door had been broken for many weeks and that numerous complaints had been made about its condition (id., ¶5). Inasmuch as Claimant would have no access to relevant information about prior complaints, reports of defects, or repair records until after discovery has been commenced, it is proper in this instance to give him the benefit of the doubt and let the action proceed.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Claimant's motion for permission to file a late claim. Claimant is therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion and to do so in conformity with the requirements of Court of Claims Act §10 and §11 within sixty (60) days after this order is filed. As noted above, Claimant's counsel had previously filed an unverified claim with the Clerk of the Court and was assigned claim number 104912. Based upon subsequent events leading to this motion, the Court finds that Claimant's attorneys have tacitly admitted that the prior claim was defective and should not have been filed. I therefore hereby direct the Clerk of the Court to close the existing claim once the claim permitted by this Order has been filed and a claim number assigned to it.

October 4, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Counsel for Claimant refers to a verified claim that, he states, was filed with the Court on August 30, 2001 (Cooper Affidavit, ¶ 7, Exhibit D). The Court has no record of such a document, however. Nor, according to defense counsel, was such a document ever served on the State (Gelormini affirmation, ¶ 6).
  2. [2]This, and other Court of Claims decisions, may be found at www.