New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-019-503, Claim No. NONE, Motion No. M-66056


Claimant's motion for permission to file late claim is denied without prejudice.

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:
NORMAN M. BLOCK, P.C.BY: Norman M. Block, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
January 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66056, dated November 14, 2002, and filed November 18, 2002.
  2. Affirmation of Norman M. Block, Esq., in support of motion, dated November 14, 2002, with attached exhibits.
  3. Proposed Claim, dated November 14, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated December 11, 2002, and filed December 13, 2002.
  5. Reply Affirmation of Norman M. Block, Esq., in support of motion, dated December 16, 2002, and filed December 18, 2002.
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, 2002.[1] 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 [6]).

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,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
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.[2] In 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.

January 15, 2003
Binghamton, New York

Judge of the Court of Claims

[1] The ninetieth day after accrual was Sunday, May 26, 2002, and the next day, May 27, 2002 was a holiday, thus the time period was duly extended pursuant to General Construction Law § 25-a.
[2]The CCA requirement that a claim be verified is not satisfied by the optional attorney verification provision of CPLR 3020 (a). (CCA 10 [6] and 11 [b]).