New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2003-019-538, Claim No. NONE, Motion No. M-66486


Claimant's motion for leave to file a late claim relative to slip and fall on prison stairway is granted.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 8, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is Claimant's second attempt to obtain permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). (Brown v State of New York, Ct Cl, January 15, 2003, Lebous J., Claim No. None, Motion No. M-66056 [UID No. 2003-019-503).[1] The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., January 15, 2003, Claim No. None, Motion No. M-66056.
  2. Notice of Motion No. M-66486, dated March 3, 2003, and filed March 5, 2003.
  3. Affirmation of Norman M. Block, Esq., in support of motion, dated March 3, 2003, with attached exhibits.
  4. Affidavit of Ronald Brown, in support of motion, sworn to February 26, 2003, with attached exhibits.
  5. Proposed Claim, sworn to February 26, 2003.
  6. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated March 27, 2003, and filed March 31, 2003, with attached exhibit.
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 Achilles tendon.

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 [6]).

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 meritorious.

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.

April 8, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the Internet at