New York State Court of Claims

New York State Court of Claims

TRUEHART V. THE STATE OF NEW YORK, #2002-031-032, , Motion No. M-64981


Claimant's failure to provide either an affidavit of someone with direct knowledge of the facts alleged or a verified proposed claim is fatal to her motion for permission to file a late claim.

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:
Hagelin & Bischof, LLCBY: DENNIS J. BISCHOF, ESQ.
Defendant's attorney:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed March 27, 2002;
2. Affirmation of Dennis J. Bischof, Esq., affirmed March 19, 2002, with attached exhibits;
3. Claimant's memorandum of law, dated March 19, 2002;
4. Affidavit of Wendy E. Morcio, Esq., sworn to April 19, 2002;
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 the case.

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 of Defendant.

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 claim[1] 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 Gloversville, 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.)[2].

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 State.

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.

August 14, 2002
Rochester, New York

Judge of the Court of Claims

As addressed below, Claimant entitles the document attached to her moving papers a proposed notice of intention to file claim, not a proposed claim.
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