New York State Court of Claims

New York State Court of Claims

BRAGG v. THE STATE OF NEW YORK, #2002-016-081, Claim No. None, Motion No. M-64962


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:
Demetrius Bragg
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, AAG
Third-party defendant's attorney:

Signature date:
August 8, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 controlling.[1]

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' submissions[2], 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.

August 8, 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 affidavit in support and exhibits consisting of proposed claim, Ambulatory Health Record and Report of Inmate Injury; and defendant's affirmation in opposition.