New York State Court of Claims

New York State Court of Claims

BROWN v. STATE OF NEW YORK, #2003-018-205, Claim No. NONE, Motion No. M-65846


Synopsis


Permission to file late claim granted pursuant to Court of Claims Act §10(6).

Case Information

UID:
2003-018-205
Claimant(s):
GREGORY BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65846
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANDREW F. PLASSE, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 27, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Movant has brought a motion for permission to file a late claim pursuant to Court of


Claims Act §10(6). Defendant opposes the motion.

Court of Claims Act §10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act §10[6]). The application is timely (CPLR 214(5); CPLR 2211; General Construction Law §20).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
The first factor, is whether the delay in filing the claim is excusable. Movant concedes that he has no valid excuse for failing to serve a notice of intention or timely file and serve a claim. As a result, this factor must weigh against granting movant's application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant, an inmate, alleges that he suffered injury while on a work site scraping a ceiling. Movant asserts that due to an insufficient number of ladders he was directed to use a chair to reach the ceiling. The chair broke causing movant to fall and suffer an injury. Movant asserts that at the time of his fall the supervising correction officer was present, watched him fall and made a note of the incident in the logbook. Defendant denies notice and an opportunity to investigate. Accepting movant's allegations as true, as we must on this motion, the State had some notice of the underlying facts and an opportunity to investigate (
Colon v State of New York, Ct Cl, unpublished decision of J. Bell, filed July 28, 1999, Claim No. None, Motion No. M-59825).
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (
Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Although movant's initial submissions to the Court were insufficient, he has adequately set forth sufficient allegations by his supplemental affidavit to support a finding that there is reason to believe he may have a valid cause of action.
The final factor is whether the proposed claimant has any other remedy available. It does not appear from the facts as alleged that movant would have any other remedy.

Accordingly, based upon the foregoing movant's application is granted. Movant is directed to file and serve his proposed claim, as attached to the supplemental affirmation and affidavit, in accordance with the Court of Claims Act and all other applicable rules within 60 days of the date this order is filed with the Clerk of the Court. The claim, although not verified by movant, was properly verified in accordance with Court of Claims Act §11(b) and CPLR 3020[d][3] (
See, Martin v State of New York, 185 Misc 2d 799, 800 n.1).

February 27, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion..............................................................................................1

Affirmation of Andrew F. Plasse, Esquire, in support, with exhibits

attached thereto.....................................................................................2

Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney

General, in opposition...........................................................................3


Supplemental Affirmation of G. Lawrence Dillon, Esquire,

Assistant Attorney General, in opposition.............................................4


Supplemental Affirmation of Andrew F. Plasse, Esquire, in support,

with exhibits attached thereto.................................................................5


Reply Affirmation of Andrew F. Plasse, Esquire, in support, with exhibits

attached thereto...................................................................................... 6