New York State Court of Claims

New York State Court of Claims

QUACKENBUSH v. THE STATE OF NEW YORK, #2002-013-038, , Motion No. M-65414


Motion for late claim is granted where the proposed claim has sufficient apparent merit and the delay does not result in significant prejudice to the State.

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: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 19, 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 Timothy Quackenbush with Annexed Law Brief, Proposed Claim and Exhibits

2. Affirmation in Opposition of Thomas G. Ramsay, Esq.

3. Reply Affirmation of Brian Chapin York, Esq., with Annexed Exhibits

4. Letter Reply of Thomas G. Ramsay, Esq, dated August 22, 2002

5. Filed Papers: none

Claimant's proposed claim alleges that on July 2, 1999, at Groveland Correctional Facility, Claimant was injured when, while shackled, he was required to exit a Department of Correctional Services (DOCS) transport bus from the rear emergency exit in a non-emergency situation. The claim further alleges that Claimant was required to use a plastic milk crate as a substitute for a safe step and that he was given no assistance in exiting the bus under these conditions. He fell while attempting to exit the bus and, according to the proposed claim, this fall resulted in two herniated discs that ultimately required removal and fusion; a fracture of the left elbow that required surgery and resulted in permanent scarring; and injury to his left knee, his shoulder and lower back. The proposed claim also alleges that Claimant received inadequate medical care and treatment for his injuries.

This motion was brought in June 2002, slightly less than three years after the proposed claim arose, and a like action against a citizen would not be barred by the applicable three-year 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. The Court, in the exercise of its discretion, balances these factors. 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).

Claimant failed to timely initiate an action in this Court because he believed that several notices of intention that he had served on the State and on certain State officers preserved his right to commence an action at a later date. These notices of intention were: (1) a notice of intention served on the Attorney General on July 19, 1999, containing the single word "Negligence" as the nature of the claim (Quackenbush Affidavit, Exhibit A2); (2) a notice of intention served on the Attorney General on September 3, 1999, containing only the statement "Medical Malpractice" "Dr. Brian Morgan" (id., Exhibit A3); and (3) a supplemental notice of intention served on the Attorney General on January 14, 2000 that contained a factual description of the circumstances in which he exited the transport bus (id., Exhibit B2). There is no dispute that the first two notices of intention, which were timely, were substantively inadequate to preserve Claimant's right to file a subsequent claim (Court of Claims Act §11[a]), while the later notice of intention, which contained adequate information about at least the negligence cause of action, was untimely, as it should have been served within 90 days of the claim's accrual, or by October 9, 1999 (Court of Claims Act § 10[3]). Claimant's failure to include sufficient factual allegations in the timely-served notices of intention to satisfy the pleading requirements of the statute is ignorance of the applicable law, in this case the law governing the required content on notices of intention. Consequently, Claimant does not have an acceptable excuse for his delay in properly commencing an action (see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792).

Claimant further asserts that the State had notice of the essential facts constituting the claim because the incident occurred in front of State officers and because all relevant records regarding his injury and treatment would be in State custody (Quackenbush Affidavit, ¶29). It cannot be assumed the State had actual knowledge of the facts giving rise to a claim merely because it owned and maintained a certain facility (Turner v State of New York, 40 AD2d 923), nor does the existence of a report filed with the State automatically establish that there was sufficient notice (Wolf v State of New York, 140 AD2d 692). The statute refers to notice of "the facts constituting the claim," and most courts have held that this means the State must be aware that there will be, or is likely to be, litigation in the future (Block v New York State Thruway Auth., 69 AD2d 930). The first notice of pending litigation came about when Claimant served the more informative but untimely notice of intention in January 2000, and that provided notice only of the tort claim, making no reference to the adequacy, or inadequacy, of the medical treatment received by Claimant.

In some situations, State employee witnesses or a report generated by an incident may be sufficient to provide the necessary notice or to bring about the type of investigation that would be conducted if a timely claim or notice of intention were received (see, Carmen v State of New York, 49 AD2d 965; Espinal v State of New York, 159 Misc 2d 1051). In this case, there was a contemporaneous Report of Inmate Injury (Quackenbush Affidavit, Exhibit A) but it indicates only that the "milk crate moved" and that Claimant suffered apparently minor injuries. There is nothing, therefore, that would have alerted the State to the potential of serious injury or, even to Claimant's contention that the State was negligent in some respects. It is not likely, however, that the State's ability to investigate the circumstances giving rise to the claim would be significantly hampered by the delay between October 1999, when a timely notice of intention could have been served, and January 2000, when the properly pled notice of intention was in fact received. Notice within three months of the incident is all that the law requires, so it does not serve for the State to complain that it was unable to conduct an immediate investigation (Nyberg v State of New York, 154 Misc 2d 199; Matter of Crawford v City Univ. of N.Y., 131 Misc 2d 1013). Permitting the proposed claim to be filed, therefore, would result in only minimal prejudice, if any, to the State.

It appears that Claimant does not have an available remedy against any party other than the State.

Claimant has succeeded at a very minimal level in establishing that the proposed claim 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). Permitting a defective claim to be filed, even if the other factors in Court of Claims Act §10(6) supported the granting of Claimant's motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). On the other hand, it has been held proper to permit the filing of a late claim in which the merit of the cause of action was weak and possibly absent even if later developments show no cause of action and lead to summary dismissal (Perez v State of New York, 75 AD2d 683). In short, the Santana standard supports rejection of claims that clearly have no merit, but gives the benefit of any doubt to a claimant.

On the face of it, applying only common sense perceptions to the very limited facts presented here, it seems unwise, and quite possibly negligent, for prison officials to require shackled prisoners to descend an unsecured, makeshift step without providing any sort of assistance. This arrangement seems irregular and risky enough that there is reasonable cause to believe that a valid cause of action exists. It is also unknown at this juncture whether Claimant will be able to establish a causal connection between his fall in July 1999 and the problems that subsequently developed in his back.[1] With respect to that portion of the proposed claim that alleges improper medical treatment, however, no malpractice is apparent to a layperson,[2] and the supporting papers do not contain any expert affidavits giving an informed opinion that the care he received failed to meet the relevant standard of professional care (see, Schreck v State of New York, 81 AD2d 882).

Taking into account the six statutorily prescribed factors, I find them to weigh in favor of granting Claimant's motion for permission to file a late claim with respect to the negligence cause of action. Claimant is therefore directed to file and serve a claim setting forth only that cause of action 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.

December 19, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1] Claimant's elbow was operated on to remove bone chips, and that may be sufficient to meet the "serious injury" threshold if New York's no-fault law (Insurance Law § 5100 et seq.) is applicable, or necessary, in this case, but such a determination cannot be made at this time upon this record, and must await further discovery practice by the parties.
  2. [2] According to Claimant's affidavit, on the day following the accident, x-rays were taken and he was put on bed rest because of pain in the area impacted by the fall; about a month later, he fell, allegedly because of excruciating back pain, and a bone scan and MRI were ordered. After another month, in September 1999, Claimant discovered a lump in his left elbow which was ultimately operated on in January 2000. Surgery on his cervical neck was performed in May 2000.