5. April 8, 2002 correspondence of Dennis J. Bischof, Esq., with attached
exhibits.This is the motion of Patricia Truehart for permission to file a late
claim, pursuant to §10(6) of the Court of Claims Act (the"CCA"). Claimant
alleges that on November 22, 2001, while a patient at the Stutzman Addiction
Treatment Center ("Stutzman"), she was injured while taking a shower.
Apparently, Claimant suffers from Multiple Sclerosis and when showering at the
facility required the use of a bench which was affixed to the shower wall. When
Claimant sat on the bench, the bench gave way and she fell to the floor.
Claimant suffered fractures and ligament damage to her left foot. She also
underwent two surgeries at Erie County Medical Center on November 30, 2001 and
March 15, 2002.
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).
With regard to her excuse for the delay, Claimant's position is that she was
unaware that Stutzman was a State owned and operated facility. Apparently,
counsel for Claimant sent a letter of representation to Stutzman on December 20,
2001. This letter and subsequent letters went unanswered until February 27,
2002 (the 97th day), when the New York State Office of Alcoholism and Substance
Abuse Services sent a letter to Claimant's counsel, informing him that Stutzman
was a State run facility. Claimant, while conceding that it is not Defendant's
duty to identify itself to her, asserts that, but for the facility's failure to
answer counsel's letters, there would be no need for this motion, which was
filed on March 27, 2002.
Claimant alleges that she has no other remedy and this certainly appears to be
Claimant alleges that, as she reported the incident right away Defendant had
immediate notice of, and a chance to investigate the matters asserted in the
claim. Additionally, as stated above, Claimant's counsel sent several letters
to the Stutzman center advising the facility of Claimant's intent to commence an
action. Claimant maintains that, as the delay was slight and because Defendant
had both notice and a chance to investigate, Defendant would not be
substantially prejudiced if the motion were granted.
With regard to merit, Claimant's counsel indicated at oral argument that he
believes the State may be held liable on a theory of res ipsa loquitur.
Claimant asserts that her injuries and the two subsequent surgeries were the
result of sitting on the defective bench which was under the exclusive control
With regard to these factors, Defendant contests only merit, admitting during
oral argument that its defense, at least at this juncture, is merely technical.
Defendant asserts that because the proposed
is unverified and the Claimant's
attorney's affidavit in support of this motion does not come from someone with
personal knowledge, the application contains no facts in admissible form and may
not be considered.
Of the six enumerated factors in CCA §10(6), it is the appearance of merit
that is most significant. 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). Unlike a party who has
timely filed a claim, a party seeking to file a late claim has the heavier
burden of demonstrating that the claim appears to be meritorious (see
Witko v State of New York, 212 AD2d 889; Nyberg v State of New
York, 154 Misc 2d 199).
In making that determination, the party making the motion has the burden of
demonstrating that the proposed claim has merit. The affirmation of the
attorney, however, who does not purport to have personal knowledge of the facts,
is of no value in determining whether a meritorious claim has been articulated
(cf., Vermette v Kenworth Truck Co.
, 68 NY2d 714; Hasbrouck v City of
, 102 AD2d 905, affd 63 NY2d 916). Similarly, an unverified
proposed claim is of no value to the Court in making this determination
(cf. Janik v State of New York Department of Transportation
January 3, 2001 [Motion No. M-60916 - UID No. 2001-005-500, Corbett, J.];
Reilly-Usher v State of New York
, October 31, 2001 [Motion No. M-63757 - UID
No. #2001-009-051, Midey, J.)
Significantly, while upon proper motion, this Court has discretion to permit
late filing, §10(6) of the CCA requires that "[t]he claim proposed to be
filed, containing all of the information set forth in section eleven of this
act, shall accompany such application." Indeed, the Claimant must attach a copy
of the proposed claim before this Court can exercise its discretion on the
application. Rather than the proposed claim, Claimant has attached an
unverified notice of intention to file a claim. This distinction is important
because, even if I were to treat this document as a proposed claim, it does not
set forth sufficient facts to state a valid cause of action against the
Claimant has failed to submit evidence in admissible form establishing that she
has a meritorious claim against the State of New York. Claimant's motion for
permission to file a late claim is denied, without prejudice.