New York State Court of Claims

New York State Court of Claims

GRAHAM v. STATE OF NEW YORK, #2003-018-220, Claim No. NONE, Motion No. M-66135


Permission to file a late claim denied after balancing factors listed in Court of Claims Act § 10(6).

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:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 13, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Movant brings a motion seeking permission to file a late claim for injuries allegedly

sustained as a result of an assault. Defendant opposes the motion.

Court of Claims Act § 10(6) allows a movant who has failed to properly serve a notice of intention or who has failed to properly
file and 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]). Movant's motion is timely (Court of Claims Act § 10(6); CPLR § 215[3]).
As a component of any late claim application, the proposed claim containing all of the information required by § 11 of the Court of Claims Act must be provided (Court of Claims Act §10[6]). Movant has not attached a proposed claim. This alone could be grounds for denying the application (
See, Goble v State of New York, Ct Cl, unpublished decision of J. Ruderman, dated July 16, 2001, UID # 2001-010-047, Cl No. 99390, Motion No. M-635591).
Turning to the factors in the statute, the first, whether the delay in filing the claim is excusable weighs against granting movant's application. Movant asserts several reasons for the delay. First, that after the incident occurred, he was housed in the Special Housing Unit for 30 days and apparently could not prepare a notice of intention or claim during that time. He then received the wrong information from the law library assistants regarding the time frame required to timely file ( he was told he needed to file within 30 days instead of 90), and by the time he received the correct information the time frame for timely service had passed. Ignorance of the law is not an acceptable excuse (
Matter of Galvin v State of New York,176 AD2d 1185, lv denied 79 NY2d 753). The incident occurred in February 2002, and his late claim application was not filed until December 12, 2002.
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. These factors weigh against granting the application. Movant does not address these factors other than a conclusory statement that the State will suffer no prejudice. In opposition, defendant asserts that the State had no notice or opportunity to investigate, since nowhere other than in this application to the Court, is there any mention of an assault upon movant by correction officers. Defendant also alleges that the State will be prejudiced by the delay as it will be difficult to find witnesses and any physical evidence at the scene of the incident which no longer exists.

The Court does not find defendant's assertion of prejudice entirely persuasive since the loss of physical evidence could have occurred with even a timely notice of intention or claim served or served and filed 90 days after accrual. The State has statements from the correction officers who transported movant to the Special Housing Unit, the sergeant who was present and the nurse who examined him, as well as photographs of his injuries. From this information, the State had notice of movant falling on snow-covered ice that night, not an assault. Furthermore, movant refused to make a statement to the nurse about how he was injured. The Court finds the factor of notice and opportunity to investigate weigh against granting movant's application.
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). Movant claims that while being transported to the Special Housing Unit by two correction officers, one of the officers slammed his head against a wall and then (it is not clear whether it is the same officer or another officer) knocked movant to the ground where both officers hit, kicked and slammed him on the ground. Defendant does not produce any affidavit from a person with knowledge of the facts. Defendant does produce the movant's medical evaluation upon arrival at the Special Housing Unit, which indicates that viewing movant in his underwear, he had a few abrasions, two around the right eye, one on the right side of his chin, and a small abrasion on his left knee. Also included are the memoranda from the sergeant to the lieutenant and from the two transporting correction officers to the sergeant describing movant's slip and fall on ice while being transported to the Special Housing Unit. Clearly there is a factual dispute as to how movant was injured while he was being transported to the Special Housing Unit. Yet, movant's affidavit sets forth facts which, if accepted as true, are not frivolous, legally defective, or patently groundless and suggest he may have a meritorious cause of action.
The final factor is whether the movant has any other available remedy. Movant clearly has no other remedy.

Upon balancing all of the factors in Court of Claims Act §10(6), although a close call, when it is coupled with movant's failure to attach the proposed claim as required by the statute, the Court denies movant's application.

May 13, 2003
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

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

Affidavit of Jeffrey Graham, in support.............................................................2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto...........................3