The proposed claim asserts that Claimant slipped and fell on wet stairs while
incarcerated at Woodbourne Correctional Facility (hereinafter "Facility") on
February 25, 2002 at approximately 8:00 p.m. Additionally, the proposed claim
further alleges that the Facility "[m]opped the stairway of the F-2 building,
and failed to post signs that the stairs were wet and slippery." (Claimant's
Exhibit B, ¶ 2).
The Court notes that Claimant, originally in a pro se appearance, served a
verified Notice of Intention on the attorney general's office on June 5, 2002 by
way of certified mail, return receipt requested. CCA 10 and 11 require that a
notice of intention shall be served on the attorney general's office or a claim
filed and served within ninety days from accrual. It is a fundamental
principle of practice in the Court of Claims that the filing and service
requirements contained in CCA 10 and 11 are jurisdictional in nature and must be
strictly construed. (Finnerty v New York State Thruway Auth
., 75 NY2d
721, 722-723). Here, Claimant's ninety day period would have expired on May 28,
Consequently, the service of the Notice
of Intention on June 5, 2002 was untimely and, as such, Claimant now seeks
permission to late file.
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this late filing motion since it was filed within three years from the
date of accrual which is the applicable time period for negligence actions
against a citizen of the state. (CPLR 214; CCA 10 ).
Turning to the substance of the motion, the factors the Court must consider in
determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
5. the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial
prejudice to the State, and
6. there is any other available remedy.
The most prominent factor for consideration is whether the proposed claim
appears meritorious, since it would be futile to permit a meritless claim to
proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d
1, 10). In order to establish a meritorious claim, Claimant must establish that
the proposed claim is not patently groundless, frivolous, or legally defective
and that there is reasonable cause to believe that a valid claim exists.
(Id. at 11). Generally, a motion for permission to file a late claim
should be supported with an affidavit from someone with first-hand knowledge of
the incident, unless the information is contained elsewhere, usually the
proposed claim. (Id. at 11). It is worth noting that the need for such
additional proof derives, in part, from the statutory requirements relating to a
verified claim and the heavier burden associated with an application to late
file. (Id. at 11-12).
Here, there is no supporting affidavit from the Claimant himself nor is the
proposed claim verified by Claimant.
reply, however, Claimant urges this Court to find that the verification of the
Notice of Intention, albeit untimely, is sufficient to support this late filing
application. The Court disagrees. The Notice of Intention at issue did not
contain factual allegations that could serve to form the foundation of this
motion. For instance, the Notice of Intention merely stated that this incident
occurred "on or about the end of February 2002" and is described as follows:
"Woodbourne Correctional Facility, Stairway F-2 Building (Wet Stairs)."
(Claimant's Exhibit A). By way of comparison, this proposed claim alleges a
specific date and time, as well as the representation that the stairs were
mopped but no warning signs posted. These additional allegations are not
contained in the only verified document in this record, namely the Notice of
Intention. This Court cannot allow this proposed claim to proceed when a
significant portion of the allegations are supported only by an attorney's
affirmation who does not possess first-hand knowledge. To do so would actually
be permitting this late applicant to proceed upon a lower standard than that
imposed upon a party filing a timely claim who must file a verified claim or
risk dismissal. (Martin v State of New York
, 185 Misc 2d 799
[requirement of verified claim is jurisdictional requisite]). Accordingly,
counsel's allegations of negligence, lacking supporting facts, must be deemed
conclusory in nature and insufficient to support a finding of merit. (Witko
v State of New York
, 212 AD2d 889, 891; Calco v State of New York
165 AD2d 117, lv denied
78 NY2d 852). Consequently, the Court finds that
Claimant has failed to establish that there is reasonable cause to believe a
cause of action exists.
As to the remaining factors, Claimant's proffered excuse is twofold. First,
Claimant argues that incarceration is a valid excuse. To the contrary,
incarceration has been found to be an inadequate excuse. (Hall v State of
New York, 85 AD2d 835). Additionally, Claimant attempts to assert that he
is entitled to invoke the doctrine of estoppel against the State due to prison
officials' delay in processing his legal mail. It is well-settled that defects
in mailing by an inmate can result, upon proper proof, in an estoppel if the
State is the cause of the delay. (Wattley v State of New York, 146 Misc
2d 968). In this Court's view, however, Claimant has failed to set forth
sufficient proof warranting the application of estoppel in this instance. As
previously noted, Claimant's ninety day statutory period expired on May 28,
2002. However, Claimant's Notice of Intention was not even sworn to until May
29, 2002 nor did he submit his disbursement request form until May 26, 2002.
(Claimant's Exhibit A). Obviously it was Claimant's own omission of waiting
until the last day after the ninety-day period to even prepare the Notice of
Intention rather than any action or inaction on behalf of the State that was the
cause of his delay. Further, his disbursement request is beyond the statutory
deadline so the State's actions thereafter are irrelevant. Claimant has failed
to establish that his delay was excusable.
The next three factors of notice of the essential facts constituting the claim,
opportunity to investigate and prejudice involve analogous considerations and
will be discussed together. Claimant argues that the State received actual
notice and an opportunity to investigate based upon its medical treatment of him
immediately after the accident. There is nothing in this record from which this
Court could conclude that any medical personnel were informed of the details of
the alleged cause of the fall and even if true, any authority that notice to
medical personnel qualifies as notice under the statute. With respect to
prejudice, Claimant argues that there is none because the State "[k]new, or
should have known, that a prisoner who falls on wet stairs is likely to assert a
claim as a result of the occurrence." (Affirmation of Norman M. Block, Esq.,
¶ 7). Although this may well be a litigious society and inmates may or may
not be more or less litigious than non-inmates, this Court finds the argument
that prison officials must automatically be charged with notice upon each and
every incident occurring within a correctional facility to be totally devoid of
merit. The Court finds these three factors weigh against Claimant.
Finally, no alternate remedy has been identified by the parties. Thus, this
factor weighs in Claimant's favor.
Based upon the foregoing, upon reviewing and balancing all of the factors
enumerated in CCA 10 (6), the Court finds that five of the six statutory
factors, including the all-important issue of merit, weigh against Claimant,
thereby warranting denial of Claimant's motion for permission to late file.
This is not to say, however, that Claimant may not file and serve a second
motion for this relief upon proper papers including but not limited to a
properly verified proposed claim.
Accordingly, IT IS ORDERED that Claimant's motion for permission to late file,
Motion No. M-66056, is DENIED without prejudice.