New York State Court of Claims

New York State Court of Claims

MOORE v. STATE OF NEW YORK, #2003-018-272, Claim No. NONE, Motion No. M-67335


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:
December 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks late claim relief pursuant to Court of Claims Act § 10(6). Defendant

opposes the relief.

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]). Movant's motion is timely (Court of Claims Act § 10[6]; CPLR § 214[5]).

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.

In his proposed claim, movant states:
I, Kevin Moore was an inmate at Ogdensburg Corr. Facility on 12-27-02 at approx - [sic] 3:30 pm I proceeded to come down from the top bunk being that there are no latters [sic] to assist inmates down from bunks - I placed my right foot on the chair for support, thus causing me to slip & fall on to bottom bunk, subsequently reinjuring my lower back and medical records will confirm a - fracture to my writing right hand, which is still very painful & I'm having trouble writing for periods at a time. Also, I'm a New York State license [sic] barber - the department was made awear [sic] of my lower back injuries - which is also on file, at Ogdensburg and elmira-corr. fac. [sic] Ogdensburg was notified upon arrival on 7/23/02 [sic].

Defendant argues that movant has failed to show that five of the six enumerated factors weigh in his favor. Most importantly, defendant argues that the proposed claim simply lacks the appearance of merit; and as a result, permission to file a late claim should not be granted. Defendant also raises a procedural issue in the affirmation in opposition, specifically, that movant's supporting affidavit, required by CPLR Rule 2214(b) and 22 NYCRR 206.9(b), does not have a jurat stating when and before whom the supposedly sworn statements were made. Nonetheless, the proposed claim is properly verified and will be used for consideration of movant's application.

Turning now to the statutory factors, the first factor, is whether the delay in filing the claim is excusable. There is no excuse provided for movant's failure to timely file a claim or serve a notice of intention in the proposed claim. The basic tenor of movant's asserted "excuse" in his unsworn supporting document is ignorance of the law, which is insufficient to excuse late filing (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs 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. There is no information provided in the proposed claim which would indicate that the State had notice of the facts underlying this claim or an opportunity to investigate. Movant asserts, in his unsworn supporting document, that the State had notice because the medical personnel were aware of his injury, and prison officials could have reviewed his medical records and the correction officers' log books in order to investigate the circumstances.

Defendant asserts by attorney affirmation that he spoke with Helga Ross, Inmate Record Coordinator at Ogdensburg, who advised that no incident report was made regarding movant's fall. However, some notice was provided regarding his fall, as evident from his ambulatory health records submitted by defendant with the opposition to the motion. The record from December 27, 2002 indicates that at 4:05 p.m. movant fell out of the top bunk injuring his right hand. It is unclear whether movant asserted any wrongdoing on the part of the State in relation to his fall. In any event, since various documents (i.e., the ambulatory health records, the transfer health records from the prior facilities, grievance complaints, etc.) are available to assist with an investigation now, it is unlikely the State will suffer substantial prejudice if this application is granted.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Unlike a party who has timely filed and served a claim, a party seeking to file a late claim has the heavier burden of showing that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally this standard is met if the proposed claim 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). Accepting as true all of movant's assertions in the proposed claim, it is unclear what he is alleging the State did wrong; nor is there any indication of the State's wrongdoing from movant's unsworn statement. The only document which presents the basis for bringing the proposed claim, is a copy of an Inmate Grievance Form unsigned by movant indicating that he advised the "head nurse" upon arriving at the correctional facility that he had prior back injuries and was unable to climb up and down to a top bunk bed. The form is signed by a "grievance clerk" and dated almost three months after movant's fall on December 27, 2002. It is unclear whether this grievance was ever submitted or heard.

There is no allegation that movant's bunk assignment was made in contravention of a medical order. A medical records review is required for placement in a double cell to assess whether the inmate has a medical condition which would require him to be assigned a bottom bunk bed (see 7 NYCRR 1701.5[6]). To the extent that movant is asserting a claim for ministerial neglect, there is no allegation that this review was not performed, or was not performed properly, in accordance with established procedures. To the extent that movant is asserting a claim that the medical staff failed to properly assess his lower back injuries and the necessity for a lower bunk assignment, the issue of whether his injury made it unsafe for placement in an upper bunk requires a medical judgment and the support of an expert affidavit (see Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Colson v State of New York,115 Misc 2d 402; Taylor v State Of New York, Ct Cl, unpublished decision of Collins J., filed April 28, 1998, Claim No. 92111). Even with the minimal standards for assessing the appearance of merit, movant's proposed claim fails.

The final factor is whether the proposed claimant has any other remedy available. By admission, defendant acknowledges that movant has no other remedy.

Based upon the foregoing, the motion is DENIED.

December 15, 2003
Syracuse, New York

Judge of the Court of Claims