New York State Court of Claims

New York State Court of Claims

GARY v. THE STATE OF NEW YORK, #2002-031-063, , Motion No. M-65693


Claimant failed to demonstrate, among other things, merit to his proposed claim. His motion for permission to file a late claim is denied.

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 General
BY: JAMES L. GELMORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed August 16, 2002;
2. Claimant's affidavit, sworn to July 19, 2002, with attached exhibits;
3. Affirmation of James L. Gelormini, Esq., affirmed September 13, 2002, with attached exhibit;
4. Claimant's "Corrected" Notice of Motion, filed September 27, 2002;
5. Claimant's affidavit, sworn to September 18, 2002;
6. Supplemental Affirmation of James L. Gelormini, Esq., affirmed October 8, 2002, with attached exhibits;
7. Claimant's unsworn rebuttal affidavit, filed October 23, 2002. Claimant Cedric Gary brings this motion for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his proposed claim, Mr. Gary alleges that he was injured on February 26, 2002, while working in the mess hall at Groveland Correctional Facility. Specifically, Claimant alleges that he was assigned to operate a meat slicing machine and that, while doing so, he severely lacerated his left pinky finger. Claimant asserts that Defendant's liability stems from its failure to train him how to properly operate the machine.

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 his excuse for the delay, Claimant asserts that a few weeks after the accident, while he was confined to the Special Housing Unit for reasons unrelated to this matter, he mailed a notice of intention to file a claim but that the notice was mishandled or lost by correctional facility staff. There is precedent indicating that, when an inmate's attempts to properly serve or file a document are thwarted by agents of Defendant, Defendant can be estopped from objecting to the timeliness of the service (Wattley v State of New York, 146 Misc 2d 968). However, in such instances, Claimant is required to present evidentiary support for his allegations, such as a disbursement form from the facility specifying that his account was debited for the purpose of sending the document in question (Dagnone v State of New York, Ct Cl, May 30, 2002, [Claim No. 105609, Motion No. M-64898], Lebous, J., UID #2002-019-532). Here, Claimant has presented no such support, and this factor weighs in Defendant's favor.

With regard to alternative remedies, it appears that Claimant's only means of redress is an action against the State and this factor weighs in Claimant's favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant does not allege that he reported his injury to his supervisor in the mess hall, but he does attach to his application copies of relevant portions of his ambulatory health record which indicate that he was treated on the day in question for a laceration of his left pinky finger. While this may constitute notice to Defendant that Claimant was injured while using the meat slicing machine, it does not indicate how he was injured, or whether the injury was the result of his lack of training, a malfunction of the machine, or merely Claimant's inattentiveness. As Defendant points out, it certainly does not put Defendant on notice that litigation may ensue as a result of the event (Allen v State of New York, Ct Cl, December 31, 2001 [Claim No. 103513, Motion Nos. M-63467, CM-63604], Patti, J., UID #2001-013-032; Bush v State of New York, Ct Cl, June 28, 2001 [Motion No. M-62454], Midey, J., UID #2001-009-028). Defendant did not have notice of, or a chance to investigate the incident, and I find that this lack of notice significantly prejudices Defendant's ability to defend this action.

Defendant also disputes the merit of Claimant's proposed claim, correctly stating 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 and, in fact, that Claimant has failed to set forth a valid cause of action against the State in his proposed claim, because the Claimant does not indicate how he was hurt, or how his alleged lack of training contributed to his accident. I agree. Claimant's failure to identify how his alleged lack of training contributed to the accident renders it impossible to analyze the merit of his claim. There is nothing in Claimant's motion papers of probative value indicating that Defendant's alleged negligence was a proximate cause of Claimant's accident (see Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891; Pena v State of New York, Ct Cl, September 27, 2001 [Claim No. 100644], Corbett, J., UID #2001-005-013 [Inmate's conclusory allegations of inadequate instruction on machine insufficient to demonstrate negligence] ). I find that Claimant's conclusory and self serving statement that he was not properly trained is insufficient to establish that his proposed claim has merit.

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.

December 2, 2002
Rochester, New York

Judge of the Court of Claims