This is the motion of Demetrius Bragg for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"), which motion is
opposed by defendant. In the proposed claim, it is asserted that because of
defendant's negligence, Mr. Bragg injured his hand on the "stripped metal
rimming" of a clothes dryer at Sullivan Correctional Facility. 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) the defendant was substantially
prejudiced; (4) the 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 the defendant had notice of
the essential facts, whether the defendant had an opportunity to investigate and
whether the defendant would be prejudiced by the granting of this motion are
intertwined and may be considered together. 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 Bragg timely served a notice of intention and in fact,
defendant "concedes" that these three factors have been met. See ¶12 of
the April 17, 2002 affirmation of Joseph F. Romani.
As to an alternate remedy, defendant argues that claimant could sue the
manufacturer of the dryer. The viability of such a suit is unknown. As to
excuse, claimant's original claim was dismissed because he failed to pay a
filing fee pursuant to an order of Hon. Susan Philips Read filed April 25, 2001.
In a previous motion made by claimant, he admitted that he neglected to read the
entire contents of such Order. This is not a sufficient excuse for the purpose
of the Act.
The final factor to be considered is merit. Claimant asserts that defendant
had knowledge of the alleged defective condition. In addition, claimant
attaches to his papers an Ambulatory Health Record which notes that "[inmate
states] he cut his thumb on dryer drum." He also attaches a Report of Inmate
Injury, which states that he "cut [left] thumb on dryer drum." Bragg meets the
standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc
2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i)
the claim "must not be patently groundless, frivolous or legally defective" and
(ii) upon consideration of the entire record, including the proposed claim and
any exhibits or affidavits, "there is reasonable cause to believe that a valid
cause of action exists."
For the foregoing reasons, having reviewed the parties'
, IT IS ORDERED that motion no.
M-64962 be granted. Within ninety (90) days of the filing of this Decision and
Order, claimant shall serve and file his claim and otherwise comply with
§§11 and 11-a of the Court of Claims Act.