New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2002-019-582, Claim No. NONE, Motion No. M-65793


Claimant's motion for leave to file a late claim relative to slip and fall in prison shower is granted.

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):

Claimant's attorney:
NISHMAN & SAVITSKY, ESQS.BY: Robert W. Nishman, Esq.
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-65793, dated September 11, 2002, and filed September 16, 2002.
  2. Affirmation of Robert W. Nishman, Esq., in support of motion, dated September 11, 2002, with attachments.
  3. Affidavit of Derrick Jackson, in support of motion, sworn to September 4, 2002.
  4. Proposed Claim, dated September 11, 2002.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated October 2, 2002, and filed October 4, 2002, with attached exhibit.
  6. Reply Affirmation of Robert W. Nishman, Esq., in support of motion, dated October 8, 2002, and filed October 18, 2002, with attachment.
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 below.

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 [6]).

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 follows:

Recently we have experienced several inmates slipping, falling, etc., while taking showers.

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 and film.

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. 2001-016-035]).[1] Accordingly, Claimant has failed to present an excusable reason for his delay in filing and serving this claim.

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, but rather notice of the essential facts constituting the claim.[2] (Matter of Crawford v City Univ. of N. Y., 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, affd 47 NY2d 976). Here, the State has not denied or contradicted Claimant's assertion of notice with any proof from someone with personal knowledge. (Powell, 187 AD2d 848; Calzada, 121 AD2d 988). As such, the Court finds the factor of notice of essential facts to be in Claimant's favor.

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.

Medical Malpractice

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 malpractice claim.

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.[3] Generally, "[t]he 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 York, 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.

November 8, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the Internet at

[2]The requisite notice under CCA 10 (6) is also different than notice of the dangerous condition which forms the basis for a prima facie case of negligence in the first instance.

[3]CPLR 214-a states that a medical malpractice action must be commenced within 2 ½ years from the date "[o]f the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure...."