New York State Court of Claims

New York State Court of Claims

PADILLA v. THE STATE UNIVERSITY OF NEW YORK AND THE STATE OF NEW YORK, #2003-010-031, Claim No. NONE, Motion No. M-67290


Synopsis


claimant's application for leave to serve and file a late claim is granted.

Case Information

UID:
2003-010-031
Claimant(s):
CHRISTINE PADILLA
Claimant short name:
PADILLA
Footnote (claimant name) :

Defendant(s):
THE STATE UNIVERSITY OF NEW YORK AND THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67290
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LAW OFFICE OF JOSEPH A. MARIABy: Frances Dapice Marinelli, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Judith C. McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affidavit and Exhibits, Memorandum of Law............................................................................................................................1

Attorney's Affirmation in Opposition......................................................................2

Attorney's Supplemental Affirmation in Opposition and Exhibits..........................3

Attorney's Reply Affirmation...................................................................................4

Christine Padilla, hereinafter claimant, seeks leave to serve and file a late claim alleging that, on October 23, 2002, at approximately 8:30 p.m., she sustained a torn glenoid labrum of the left shoulder, during her participation in a Rape Aggression Defense class at State University of New York at Purchase (SUNY). The alleged negligence is that, despite Padilla's complaints of pain, the instructor directed her to continue performing a block.

Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979; Broncati v State of New York, 288 AD2d 172, 173).

Claimant's purported excuse for failure to timely serve and file a claim or a Notice of Intention to File a Claim is that she did not know the severity of her injury until April 2003, approximately six months after the incident (Claimant's Motion Papers, Ex. C, Proposed Claim). This is not a valid excuse because claimant's medical records do not explain why the injury was not apparent for six months (Lodati v City of New York, 303 AD2d 406, 407 ["The petitioner's excuse for failing to serve a timely notice of claim, that he was unaware of the severity of his right shoulder injury until approximately six months after the accident, is unacceptable without supporting medical evidence explaining why the injury took so long to become apparent and be diagnosed"]). Nor do the medical records provide an explanation for claimant's failure to timely seek the advice of an attorney (see Gaudio v City of New York, 235 AD2d 228 [petitioner's excuse that he did not appreciate the full extent of his injuries until two months after the accident is not an acceptable excuse absent supporting medical evidence explaining "first, why the injury took so long to become apparent, and, second, why it might have prevented plaintiff from seeking the advice of an attorney for another three months"]).

Additionally, the 10 month delay from the time of the incident in October until claimant sought leave to bring a late claim has prejudiced defendant's ability to conduct an effective investigation of the facts and to locate and examine witnesses while their memories of the facts are still fresh (see Quilliam v State of New York, 282 AD2d 590, 591 [almost eight month delay denied defendant "the opportunity to investigate the facts as well as locate and examine witnesses while their memories of the facts were still fresh"]).

Claimant submits a copy of the incident report filed with SUNY police on October 25, 2002 which states:
"PADILLA STATED THAT ON 10/23/02 AT 2030 HRS SHE WAS IN R.A.D. CLASS IN THE GYM MAT ROOM. PADILLA STATED THAT SHE WAS DOING A BLOCK AND PERRY WITH INSPECTOR MARKUS-JONES. WHEN SHE BLOCKED A PERRY FROM INSPECTOR MARKUS-JONES SHE SAID SHE FELT HER LEFT SHOULDER POP. PADILLA STATED THAT SHE PUT ICE ON IT AND LEFT CLASS AT 2040 HRS AND WENT TO UNITED HOSPITAL"

(Claimant's Motion Papers, Ex. C, Incident Report). The report does not contain any facts which would alert defendant of any allegations of negligence nor does it connect claimant's injury to any negligence attributable to defendant. Accordingly, claimant may not rely on the report to establish that defendant had notice of the essential facts constituting the claim (Quilliam v State of New York, 282 AD2d 590, supra [claimant may not rely on incident report completed by SUNY at Stony Brook campus police shortly after occurrence or the prehospital care report prepared by Stony Brook ambulance personnel because reports made no mention of allegedly defective condition which purportedly caused accident and did not connect claimant's injuries to any negligence of the state]). Additionally, the incident report does not establish the appearance of merit of the claim.

In considering whether to grant a late claim application, the most significant factor is the appearance of merit of the proposed claim. 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, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Claimant's statement in her Proposed Claim that she reported the incident to the Vice President of Academic Affairs is self-serving, vague and conclusory and does not establish that defendant received timely notice of the essential facts sufficient to warrant an investigation of the incident; nor does it establish the appearance of merit (Claimant's Motion Papers, Ex. C, Proposed Claim; see Klingler v State of New York, 213 AD2d 378 [claimant's unsupported opinion does not suffice to establish merit of her claim]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). The incident report is silent as to any negligence attributable to defendant and does not contain the alleged facts that she was directed to continue her participation in the class after notifying the instructor of her purported injury.

Upon consideration of all the relevant factors, the Court concludes that claimant has failed to establish entitlement to a granting of her application for leave to serve and file a late claim.

Motion DENIED.


September 29, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims