Claimant's papers allege that he slipped and fell in a puddle of water in the
F2 shower area while incarcerated at Woodbourne Correctional Facility
(hereinafter "Woodbourne") on May 31, 2000. Claimant avers that at the time of
his fall he heard a "pop" in his back and was unable to flex his left leg.
(Affidavit of Derrick Jackson, pp1-2). Claimant was transported that same day
to a local hospital where x-rays of his lower back and pelvis were negative.
Claimant also alleges medical malpractice by Woodbourne medical personnel in
relation to their treatment of his injuries.
Initially, the Court notes Claimant's argument that his Notice of Intention
served on October 22, 2001 was timely because it was served within 90 days after
discovery of the severity of his injuries. Claimant further states that the
purpose of this motion is merely to cure defects in said Notice of Intention
relative to date, time and place of the incident. The Court rejects this
argument. Although certain limited situations such as discovery of a foreign
object have been deemed to accrue upon discovery, Claimant cites no authority
for any such exception in a typical slip and fall claim. Accordingly, pursuant
to CCA 10 and 11, Claimant's Notice of Intention served on October 22, 2001 was
untimely with respect to his negligence claim arising on May 31, 2000, requiring
the Court to proceed to the substance of this late filing motion. Claimant's
arguments regarding his medical malpractice claim will be discussed separately
Slip and Fall/Negligence
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ).
The factors that the Court must consider in determining a properly framed CCA
10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances
underlying the claim,
4. the claim appears to be meritorious,
5. 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
6. the Claimant has any other available remedy.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), since it would be futile to permit a meritless claim to proceed.
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In
order to establish a meritorious claim, Claimants must establish that the
proposed claim is not patently groundless, frivolous, or legally defective and
that there is reasonable cause to believe that a valid claim exists.
(Id., at 11). "While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto...." (Id., at 11-12).
That having been said, however, it is helpful to understand the burden Claimant
will have to meet at trial. In order to establish liability in a slip and fall
case, Claimant will have to prove, by a preponderance of the credible evidence,
that a dangerous condition existed; that the State either created said dangerous
condition or had actual or constructive notice thereof and failed to alleviate
said condition within a reasonable time; and that said dangerous condition was a
proximate cause of the accident. (Dapp v Larson, 240 AD2d 918). It is
well established that in order "[t]o constitute constructive notice, a defect
must be visible and apparent and it must exist for a sufficient length of time
prior to the accident to permit the defendant's employees to discover and remedy
it [citations omitted]". (Gordon v American Museum of Natural History,
67 NY2d 836, 837).
Here, Claimant relies upon a Memorandum from the Acting Deputy Superintendent
for Security at Woodbourne, Ronald K. Krom dated January 11, 1999 (hereinafter
"Krom Memo"); Department of Correctional Services ("DOCS") Directive # 4064; as
well as a prior accident. The Krom Memo is addressed to the entire staff at
Woodbourne with the subject of "shower mats" and states, in pertinent part, as
Recently we have experienced several inmates slipping, falling, etc., while
Please ensure that the shower mats are in place and the assigned porters are
mopping excess water in order to prevent any further incidents. They may be
rolled up for cleaning, then put back in place.
(Attachment to Reply Affirmation of Robert W. Nishman, Esq.).
Claimant also submits a copy of DOCS Directive # 4064 and highlights the
following safety instructions:
C. Bath Houses/Shower Areas.
1. Floors or stalls shall be regularly cleaned to prevent the buildup of soap
2. Anti-slip strips may be installed to prevent slipping.
(Attachment to Reply Affirmation of Robert W. Nishman, Esq.).
Finally, Claimant indicates that someone told him of a prior similar slip and
fall in the shower area in November 2000. The State responds that this
so-called prior accident actually occurred in a different shower area within the
facility than Claimant's accident.
In this Court's view, Claimant's submissions are sufficient to raise the
possibility that the State may have had actual or constructive notice of a
dangerous condition which it failed to alleviate. Moreover, the State has
failed to come forward with any proof genuinely contesting the substance of
either the Krom Memo or Directive #4064 from someone with firsthand knowledge.
(Matter of Powell v State of New York, 187 AD2d 848; Calzada v State
of New York, 121 AD2d 988, 989). Accordingly, in viewing this record as a
whole, the Court finds reasonable cause to believe that a valid claim exists.
With respect to the remaining factors, Claimant's proffered excuse is that he
was not aware of the seriousness of his injury until his symptoms worsened many
months after the accident. Although Claimant's initial decision not to pursue
litigation in the face of what he considered minor injuries may well be
laudable, such a situation has been equated with an unfamiliarity with the law
within the meaning of the CCA. (Cajal v State of New York
, Ct Cl, May 9,
2001, Marin, J., Claim No. None, Motion No. M-62793 [UID No.
Accordingly, Claimant has
failed to present an excusable reason for his delay in filing and serving this
Notice of the essential facts, opportunity to investigate and substantial
prejudice comprise the next three factors. With respect to notice, the State
argues that the presence of correction officers at the time of the accident does
not equate to "notice of an impending lawsuit." (Affirmation of James E.
Shoemaker, AAG, ¶ 6). Contrary to the State's argument, the notice
requirement under CCA 10 (6) is not notice of possible litigation
rather notice of the essential facts constituting the
(Matter of Crawford v City Univ. of
, 131 Misc 2d 1013, 1015). Moreover, the State avers that "[w]hile the
corrections officers may have investigated with respect to the cause of the
accident or the type of accident involved, the State of New York would not
necessarily investigate claimant's accident with respect to a lawsuit."
(Affirmation of James E. Shoemaker, AAG, ¶ 6). The Court finds the State's
attempt at such a distinction to be without merit. Furthermore, "[f]acts stated
in a motion for leave to file a late claim against the State are deemed true for
purpose of motion, when not denied or contradicted in opposing affidavits."
(Sessa v State of New York
, 88 Misc 2d 454, 458, affd
63 AD2d 334,
47 NY2d 976). Here, the State has not denied or contradicted
Claimant's assertion of notice with any proof from someone with personal
, 187 AD2d 848; Calzada
, 121 AD2d 988). As
such, the Court finds the factor of notice of essential facts to be in
With respect to opportunity to investigate and substantial prejudice, the State
argues that these two factors weigh in its favor because the dangerous condition
at issue was transitory in nature. Again, however, the State presents this
conclusion, the lack of an opportunity to investigate, via an attorney's
affirmation which is without any weight. (Powell, 187 AD2d 848;
Calzada, 121 AD2d 988). Nor does the Court accept the State's argument
relative to prejudice. The State argues that it would suffer substantial
prejudice in view of the transitory condition and the near two year delay. The
Court disagrees. Arguably, the prejudice to the State at this time is the
equivalent as if Claimant had waited until the last day of the 90-day statutory
time period after accrual to comply with CCA 10. In other words, the transitory
condition, e.g. the puddle, would have deteriorated by the 200th day just as
much as by the 90th day after the accident. In this Court's view, although the
State will undoubtedly suffer some prejudice due to the delay, the Court does
not find that the prejudice will be substantial. In fact, the greater prejudice
resulting from this delay may well fall at the feet of Claimant who has the
burden of proof at trial. As such, the Court finds that these three factors
weigh in Claimant's favor.
The last factor is the availability of an alternate remedy. Neither party
addresses this issue. Nevertheless, the Court finds that no alternate remedy is
available to Claimant based upon these allegations.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that five of the six factors, including the
all-important factor of merit, weigh in favor of granting Claimant's motion for
permission to file a late negligence claim.
Finally, Claimant asserts that he did not intend this motion to apply to his
allegations of medical malpractice because his Notice of Intention served on
October 22, 2001 was timely in that respect. Claimant argues that the Notice of
Intention was timely with respect to a medical malpractice claim because he
still continues to receive treatment for his injuries, thereby allowing him to
serve a claim into 2003. Claimant asserts that his medical malpractice claim
accrued on September 13, 2001 which is the date he received his MRI results
showing a herniated disc. The State does not address the date of accrual, but
rather emphasizes that a motion seeking permission to late file must be
accompanied by an expert's affidavit. Claimant reiterates that no such expert
affidavit is required because he is not seeking 10 (6) relief for his medical
In this Court's view, it appears that Claimant is arguing for an accrual based
upon the date he discovered the extent of his injuries, as well as the
application of a toll of the statutory period for continuous treatment as
codified in CPLR 214-a.
limitations period for bringing a medical malpractice action has been held to
run from the date that the last act of alleged malpractice was performed rather
than from the date that the resulting injury was discovered [citation omitted].
(Rodriguez v Manhattan Med. Group
, 77 NY2d 217, 220). That having been
said, however, a narrow exception was created with respect to foreign objects
accidently left in the body. (Id
.). Obviously, such is not the case
here. Stated another way, "[a]lthough it has been held in the context of
certain actions against the State that a claim under Court of Claims Act
§10 (3) accrues when damages can be ascertained, rather than the date the
injury occurred [citations omitted], that rule has not been extended to medical
malpractice causes of action [citation omitted]." (McClurg v State of New
, 204 AD2d 999, 1000-1001, lv denied
84 NY2d 806).
With respect to continuous treatment, the application of the doctrine "[d]oes
not change or extend the accrual date but serves only to toll the running of the
applicable Statute of Limitations [citations omitted]". (Matter of Daniel J.
v New York City Health & Hosps. Corp., 77 NY2d 630, 634). The Third
Department has stated that an inmate who sought reliance on the continuous
treatment doctrine "[c]learly severed any continuing relationship of trust in
the physician-patient relationship and ended any 'continuous treatment tolling'
at that point [citations omitted]", namely when he served his notice of
intention upon defendant. (Toxey v State of New York, 279 AD2d 927, 929,
lv denied 96 NY2d 711). Here, Claimant served a Notice of Intention upon
the State on October 22, 2001 containing allegations of medical malpractice.
While service of such document extended the time for commencing a claim under
CCA 10, "[i]t also terminated the toll of the accrual date afforded by the
continuous treatment doctrine." (Chestnut v State of New York, Ct Cl,
February 13, 2001, Bell, J., Claim No. 102155, Motion Nos. M-62287 & M-62989
[UID No 2001-007-085]). As such, the Court finds that although Claimant need
not seek 10 (6) relief with respect to his medical malpractice action, it should
be noted that he has two years to file and serve a medical malpractice claim
calculated from the cessation of the toll of the accrual date, e.g., within two
years of the date he served his notice of intention, or October 22, 2003. It
should also be noted, however, that "[t]o the extent claimant asserts additional
malpractice occurred following the service of the notice of intention, the
previously served notice of intention does not afford to subsequently occurring
conduct the benefit of a further full two-year extension from the date such
subsequent acts occurred." (Chestnut v State of New York).
Accordingly, in view of the foregoing, IT IS ORDERED that Claimant's motion for
permission to late file, Motion No. M-65793, is GRANTED. Claimant shall file a
claim with the Clerk of the Court and serve a copy of the claim upon the
attorney general within sixty (60) days from the date of filing of this Decision
and Order with the Clerk of this Court. The proposed claim may be revised to
include the allegations of medical malpractice referenced by Claimant if he so
chooses. The service and filing of the claim shall be in conformity with all
applicable statutes and rules of the Court with particular reference to CCA 10,
11 and 11-a.