Claimant has supplemented this second attempt with both an affidavit from
Claimant, as well as a verified proposed claim, neither of which were included
in his first motion. The proposed claim alleges that Claimant slipped and fell
on wet stairs located in the F-2 building of Woodbourne Correctional Facility
(hereinafter "Woodbourne") on February 25, 2002. Claimant further alleges "I
believe that the stairs had been recently mopped. There were no signs or other
warnings that the stairs were wet." (Claimant's Affidavit, ¶ 2). Claimant
alleges that he suffered torn ligaments requiring surgery to repair his left
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ).
The factors that 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. the Claimant has any other available remedy.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), 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, Claimants 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). "While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his
claim, or overcome all legal objections thereto...." (Id. at 11-12;
emphasis added). That having been said, however, it is helpful to understand
the burden Claimant will have to meet at trial. In order to establish liability
in a slip and fall case, Claimant will have to prove, by a preponderance of the
credible evidence, that a dangerous condition existed; that the State either
created said dangerous condition or had actual or constructive notice thereof
and failed to alleviate said condition within a reasonable time; and that said
dangerous condition was a proximate cause of the accident. (Dapp v
Larson, 240 AD2d 918). It is well established that in order "[t]o
constitute constructive notice, a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit the
defendant's employees to discover and remedy it [citations omitted]".
(Gordon v American Museum of Natural History, 67 NY2d 836, 837).
Here, the State objects to the lack of any documentary evidence establishing
the occurrence of this incident in the first instance. (Affirmation of James E.
Shoemaker, AAG, ¶ 6). While it is true that Claimant has offered nothing
other than his own allegations in support of his proposed claim, it is
well-settled that "[f]acts stated in a motion for leave to file a late claim
against the State are deemed true for purpose of motion, when not denied or
contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc
2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). In this Court's
view, the State's submission of log book entries which do not reference any fall
are insufficient to overcome this presumption. (State's Exhibit A).
Additionally, it is possible that the ultimate determination of whether this
fall actually occurred will depend upon credibility assessments. Although the
Court is entitled to consider credibility on a late filing motion (Matter of
Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753),
the Court has not been presented with sufficient information to ascertain the
credibility of Claimant with any degree of certainty at this stage.
It is well-settled that every fall on State-owned property does not equate to
liability. (Boettcher v State of New York, 256 AD2d 882). Although
Claimant has not submitted any direct evidence or even alleged the breach of a
policy relative to mopping and the posting of "wet floor" signs, there are
situations in which negligence and causation may be reasonably inferred from
circumstantial evidence. (Healy v ARP Cable, 299 AD2d 152). Moreover,
the State has failed to come forward with an affidavit from someone with
firsthand knowledge denying these stairs were recently mopped. (Calzada v
State of New York, 121 AD2d 988). Nevertheless, although the issue is a
close one and while these proposed pleadings could have been more artfully pled,
this Court finds that Claimant has met the minimal burden applicable on late
filing motions. This is not to say, however, that this litigant will be
successful at trial or be able to withstand a dispositive motion after full
discovery, only that based upon these undisputed allegations Claimant has
satisfied the minimal burden of establishing that his proposed claim appears
With respect to the remaining five factors, neither party offers any arguments
that warrant reassessment of this Court's prior analysis. As such, for the
reasons set forth in the prior Decision & Order, this Court finds that the
factors of excuse, notice, opportunity and prejudice weigh against Claimant,
while the factor of the lack of an alternate remedy weighs in Claimant's favor.
(Brown v State of New York, Ct Cl, January 15, 2003, Lebous J., Claim No.
None, Motion No. M-66056).
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that two of the six factors, including the
all-important factor of merit, weigh in favor of granting Claimant's motion for
permission to file a late negligence claim.
Accordingly, in view of the foregoing, IT IS ORDERED that Claimant's motion for
permission to late file, Motion No. M-66486, is GRANTED. Claimant shall file a
claim with the Clerk of the Court and serve a copy of the claim upon the
attorney general within sixty (60) days from the date of filing of this Decision
and Order. The service and filing of the claim shall be in conformity with all
applicable statutes and rules of the Court with particular reference to CCA 10,
11 and 11-a.