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
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'
IT IS ORDERED that motion no.
M-64160 be denied.