New York State Court of Claims

New York State Court of Claims
MC DOWELL v. THE STATE OF NEW YORK, # 2002-031-018, Claim No. , Motion No. M-64335


Claimant, injured during the use and operation of a State owned vehicle, failed to demonstrate both serious injury as required by Insurance Law 5102(d), and notice of the allegedly defective seat over which he tripped. His motion for permission to file a late claim is denied.

Case information

UID: 2002-031-018
Claimant(s): SHAWN MC DOWELL
Claimant short name: MC DOWELL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
Motion number(s): M-64335
Cross-motion number(s):
Claimant's attorney: SHAWN MC DOWELL, PRO SE
Defendant's attorney: HON. ELIOT SPITZER
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 17, 2002
City: Rochester
Official citation:
Appellate results: 4 AD3d 783
See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:

This is the motion of Shawn McDowell for permission to file a late claim pursuant to 10(6) of the Court of Claims Act (the"CCA"). In his proposed claim, Mr. McDowell alleges that his right shoulder was injured on January 2, 2001, when he fell while being transported from Attica Correctional Facility to Wyoming Correctional Facility in a State owned and operated vehicle. Claimant had undergone surgery on his right shoulder approximately one month earlier and was traveling for the purpose of receiving physical therapy for his shoulder at the time of the accident.

Claimant alleges in his notice of intention (Exhibit 3) that, at the time of the injury, he was sitting in one of the appropriate seats and, as he was standing up to leave the van, the seat broke in some way and his ankle restraints became entangled in the broken seat, causing him to fall and re-injure his right shoulder. Claimant underwent a second shoulder surgery in June of 2001. He asserts that this additional surgery was necessitated by the January 2, 2001 fall.

Subdivision 6 of 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Of these six factors, Defendant disputes only merit, correctly pointing out that it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (See, e.g., Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test: it must not be patently groundless, frivolous, or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Defendant argues that the claim lacks merit for two reasons. First, Defendant asserts that Claimant has failed to demonstrate that he suffered "serious injury" as defined by Insurance Law 5102(d). Second, Defendant asserts that Claimant has failed to demonstrate that Defendant had notice of the allegedly defective seat which, upon breaking, caused Claimant's fall. I will address each argument in order.


As Claimant was injured exiting a State van after his transport, his injury arose "out of the use and operation of a vehicle" (Insurance Law 5102[b]) (Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93; Yanis v Texaco, Inc., 85 Misc 2d 94). Therefore, in order to recover, Claimant must demonstrate that he suffered serious injury as defined by Insurance Law 5102(d). ( Licari v Elliott, 57 NY2d 230; Giannattasio v State of New York, Ct. Cl., June 25, 2001, [Claim Nos. 97741 and 100199 - Motion No. M-63325 - MacLaw No. 2001-001-034] Read, J).(1) In his motion papers, Claimant has merely stated, in conclusory language which tracks the statute, that he has sustained serious injury. Such conclusory allegations are insufficient to demonstrate merit (Edwards v State of New York, 119 Misc 2d 355).

Claimant attempts to address this shortcoming in his reply papers, asserting that his subsequent operation and his medical records demonstrate that he has met the serious injury threshold. Claimant relies on the following language in his medical records: "S: Pt had fully recovered from surgery when he fell on 1/2/01" (Claimant's Exhibit 4). Claimant points out that this entry was written by a Dr. Stein, and argues that this demonstrates that his shoulder problems were not preexisting. He asserts that this entry, coupled with the fact that he underwent a subsequent surgery in June of 2001, demonstrate that he has met the serious injury threshold as defined by the Insurance Law. However, it is apparent that the "S" at the beginning of the quote stands for subjective, meaning that these are Claimant's own words. Additionally, Claimant refers to the nurse's notes of January 2, 2001, to demonstrate that the fall occurred. While he does accomplish this, the notes also demonstrate that there is no sign of new injury, no swelling, and no decrease in range of motion (Claimant's Exhibit 2). Finally, though Claimant did undergo arthroscopic surgery on June 18, 2001, it is not clear if, and to what extent, this second operation related to Claimant's January 2, 2001 fall.

Claimant is required to submit expert medical testimony regarding causation and prognosis in order to establish that he sustained a "serious injury" as a result of this accident (Andre v Seem, 234 AD2d 325; Edwards v State of New York, supra at 356). An expert medical witness must also establish the degree of the injuries and causation to a reasonable level of medical certainty (Dumas v Valley View House, Inc., 235 AD2d 767).

While it is true that, in rare cases, where the injury is within the experience and observation of ordinary laypersons, causation and serious injury may be established without expert medical testimony (See Lanpont v Savvas Cab Corp., 244 AD2d 208), this is not such a case. The Court cannot ascertain through the examination of Claimant's medical records that the injuries to his shoulder were in any way caused by this specific event. A doctor's affidavit explaining the causal connection is necessary. I find, therefore, that Claimant has not satisfied his burden of proof.


Assuming, arguendo, that Claimant did meet the serious injury threshold, he must still demonstrate that Defendant had notice of the allegedly defective condition if his claim is to be deemed meritorious. Claimant describes how he was injured as follows: "I tried to get up (from the van seat) the seat broke and my leg chains got stuck in the broken piece and I fell landing on my right shoulder." (Claimant's Exhibit 3). He alleges that the seat was defective and his fall was the result of Defendant's negligence in permitting this defective condition to exist in the van. On this issue, Claimant candidly admits, however, that Defendant had no notice of the alleged defective condition. "The seat was not defective before the trip so the defendants (sic) would not have (had) notice, as the Attorney General contends." (Claimant's Reply Affidavit page 14). Defendant correctly cites Bethel v New York City Transit Auth. (92 NY2d 348) and Babbie v Boisvert (281 AD2d 845) for the proposition that, without notice of the alleged defect, either actual or constructive, Defendant cannot be cast in damages. (See also, Prisco v City University of New York, Ct. Cl., January 14, 2002, [Claim No. 99374 - MacLaw No. 2001-001-530] Read, J.)

Claimant also alleges that the transport van was overcrowded (there was room for 6 inmates and 7 were transferred and he was forced to sit on a milk crate) and that there was no seat belt available for him. Claimant implies that these allegations are evidence of negligence (apart from the allegedly defective seat) for which notice is not required. I find that they are not. At the time of the accident, the van was stopped and Claimant tripped over an allegedly defective seat as he attempted to disembark. Claimant does not indicate how any of these other problems contributed to, or were in any way related to, his accident. In fact, though it appears that Claimant was injured on the return leg of the trip, some of the problems Claimant identifies, such as overcrowding and being forced to sit on a milk crate, apparently only occurred on the first leg of the trip.

Finally, Claimant also alleges that the Defendant's failure to assist him in getting out of the van was negligent. I find no reason to impose such a duty on Defendant. Claimant has made no showing that Defendant had an obligation to assist him in exiting the van. There is nothing alleged by Claimant, or contained in the medical records submitted with his motion, that indicates Claimant suffered from some type of disability that required that he be given assistance when exiting the van. Nor does Claimant indicate how this assistance would have prevented the seat from breaking and his subsequent fall. I find Defendant's alleged refusal to assist Claimant in getting out of the van to be irrelevant.

For the reasons set forth above, I find that Claimant has failed to demonstrate that his proposed claim has merit. Claimant's motion for permission to file a late claim is denied.

May 17, 2002

Rochester, New York


Judge of the Court of Claims

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