This motion for late claim relief pursuant to Court of Claims Act § 10 (6)
is granted. By decision and order dated December 10, 2001 and filed December 21,
2001 this Court dismissed a previously filed claim (No. 103803) seeking damages
for personal injury sustained by claimant in a fall from a bunk bed at Oneida
Correctional Facility on February 2, 2001 at approximately 6:15 a.m. That claim
had alleged that claimant's injuries resulted from a dangerous condition
presented by a bunk bed cube arrangement the danger of which was known to the
State. The defendant's motion to dismiss that claim was based on a lack of
jurisdiction stemming from the alleged failure of claimant to specify a theory
of liability and his failure to specify the items of damage or injuries claimed
to have been sustained and the total sum claimed (see, Court of Claims
Act § 11 [b]).
The Court found that the claim set forth sufficient detail regarding the
incident and the alleged basis of the State's negligence to withstand the motion
but dismissed the claim due to claimant's failure to itemize damages and to
state a total sum claimed as required by Court of Claims Act § 11 (b). The
dismissal was without prejudice to a timely application for late claim relief
and the instant motion ensued.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and, whether the claimant has any other available remedy".
The motion filed on January 14, 2002 is timely in that a claim containing a
cause of action for personal injuries negligently caused is governed by the
three year Statute of Limitations set forth in CPLR § 214 (5).
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuse offered for the failure to timely commence the claim was the
unanticipated dismissal of the earlier filed claim. The Court finds the
proffered excuse reasonable under the circumstances.
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. Movant alleges in the proposed claim that he reported
his injury to the correctional officers station in dormitory C after its
occurrence on February 2, 2001 and further alleges on this motion that the prior
claim was filed on February 9, 2001, within one week of its accrual, thus
providing the State with notice and an opportunity to investigate. Although
defense counsel acknowledges the defendant's awareness of the underlying facts
he asserts in conclusory fashion that the State has not yet had a full
opportunity to investigate and will be prejudiced if the application is granted.
Such conclusory assertions by counsel are insufficient since defense counsel
does not offer factual allegations from a person with direct knowledge to show
that the State was unable to promptly investigate the incident. He alleges only
that it has not had a full opportunity to do so. No alleged prejudice has been
shown or facts alleged from which prejudice could be inferred. The Court
concludes that these factors weigh in favor of granting the application.
As to the issue of merit, the proposed claim appears to present a single cause
of action sounding in negligence. In order to establish a meritorious claim it
is movant's burden to show that the proposed claim is not patently groundless,
frivolous or legally defective and there is reasonable cause to believe that a
valid claim exists (see, Rosenhack v State of New York, 112 Misc
2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
In the Court's view movant has met that burden.
As to the final factor, it does not appear that movant has any other remedy
available under the circumstances.
A review of the record on the motion and the statutory factors lead the Court
to conclude that late claim relief is appropriate. Accordingly, claimant's
motion is granted.
Movant is hereby directed to file a verified claim with the Chief Clerk of the
Court and to serve a copy thereof upon the Attorney General either personally
or by certified mail, return receipt requested, as provided in Court of Claims
Act § 11 (a) (i) within 30 days of service upon him of a copy of this
decision and order. Movant is advised that the proposed claim submitted to the
Court with the late claim application does not satisfy this requirement since it
was submitted prior to the granting of the motion.