New York State Court of Claims

New York State Court of Claims

PICHARDO v. THE STATE OF NEW YORK, #2002-016-024, Claim No. None, Motion No. M-64160


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):

Alan C. Marin
Claimant's attorney:
William Pagan & Associates, P.C.By: Gerald Arze, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
March 5, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Ebadilia Pichardo for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed claim arises from a May 1, 1999 incident in which Pichardo, who was roller skating at Riverbank State Park, allegedly tripped and fell "due to construction cones located in the center of said skating rink." In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether defendant had notice of the essential facts, whether defendant had an opportunity to investigate and whether defendant would be prejudiced by the granting of this motion are intertwined and may be considered togther. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, it is undisputed that claimant timely served a notice of intention within 90 days and thereafter a claim within two years (this motion is being made because claimant failed to file the claim). Claimant satisfies these three factors.

As to an alternate remedy, it appears that claimant's sole venue would lie against the State in this Court. As to an excuse, claimant asserts that because of a clerical error, the claim was not filed with the Clerk of the Court. This is not a valid excuse for the purposes of the Act. See, e.g., Nyberg v State of New York, 154 Misc 2d 199, 585 NYS2d 147 (Ct Cl 1992).

The final factor to be considered is the appearance of merit. In her papers, claimant asserts that the accident occurred because she tripped over construction cones. A different story is told, however, in three separate reports created on the date of the incident. In a New York State Parks Patron Accident Report, it is stated that "[t]he patron claimed to have lost her balance and fell . . ." A police report states that claimant told the officer "that while she was skating, she bent over to help a child who fell, causing her to [lose] her balance and fall . . . " Finally, a Riverbank State Park Incident Report states that "young female says she was trying to skate with her daughter, she lost her balance on the turn and fell . . ."

Even if it is assumed that claimant did not fall as set forth in these reports, but rather that she tripped "due to" construction cones, her own theory of recovery does not appear viable as it is well established that one is bound to see that which could be observed by a proper use of the senses. See, e.g., Doyle v State of New York, 271 AD2d 394, 705 NYS2d 389 (2d Dept 2000). Pichardo, who has provided no details as to the cones or how she allegedly fell over them, has thus made no effort to overcome the open and obvious issue. In sum, I find that claimant fails to satisfy the merit factor of the Act. See Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977).

In view of the foregoing, having read the parties' submissions,[2] IT IS ORDERED that motion no. M-64160 be denied.

March 5, 2002
New York, New York

Judge of the Court of Claims

  1. [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).
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support, affidavit in support and exhibits A-D; defendant's affirmation in opposition with exhibits A and B; and claimant's reply affirmation.