New York State Court of Claims

New York State Court of Claims

ERKFITZ v. THE STATE OF NEW YORK, #2002-031-058, , Motion No. M-65660


Claimant's unopposed motion for permission to file a late claim 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:
Defendant's attorney:
New York State Attorney GeneralBY: NO APPEARANCE
Third-party defendant's attorney:

Signature date:
November 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed August 15, 2002;
2. Claimant's affidavit, sworn to June 7, 2002;
3. Affidavit of Richard G. Berger, Esq., sworn to August 9, 2002, with attached exhibits; This is the motion of Linda Erkfitz for permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the "CCA"). In her proposed claim, Ms. Erkfitz alleges that she slipped and fell on a stone staircase while visiting Old Fort Niagara State Park in Youngstown, New York. This facility is owned and operated by Defendant, the State of New York. Claimant alleges Defendant acted negligently by permitting the staircase to become deteriorated and covered with a fine and slippery dust. As a result of her fall, Claimant alleges that she suffered fractures of her left tibia and left fibula. She was forced to undergo two separate surgeries as a result of her injuries.

Defendant has not opposed this motion.

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).

Claimant asserts that she has no other remedy and that her delay in filing was caused by the complications of her injuries, coupled with the fact that she is not a resident of the State of New York. She alleges that Defendant had notice of, and an opportunity to investigate the incident because the accident was reported to employees of the State Park at the time that it occurred. An accident report was prepared at that time by State Park staff. She asserts that, because of this, Defendant would not be prejudiced if her application were to be granted. Claimant maintains that her proposed claim has merit as it clearly alleges that the Defendant's negligent failure to properly maintain the staircase was the cause of her accident.

As the Defendant has offered no opposition to this motion, I find that it must be granted. I also note that, from Claimant's papers, even if the State had opposed the motion, it is likely that the motion would still be granted. With the possible exception of her excuse for the delay, Claimant has adequately demonstrated that each of the six factors most likely weigh in her favor. It appears that Defendant had both notice of, and a chance to investigate the incident at the time it occurred and, therefore, would not be significantly prejudiced if the application were to be granted. Also, it appears that Claimant has no other remedy available to her except an action in the Court of Claims against the State of New York. Finally, with regard to merit, 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). I find that Claimant's proposed claim satisfies both prongs of this test.

Based upon the foregoing, it is hereby:

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim submitted in support of this motion and to do so in conformance with the requirements of CCA §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

November 4, 2002
Rochester, New York

Judge of the Court of Claims