1,2 Notice of Motion, Affidavit by Anibal Rivera, proposed Claimant, and
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Claimant alleges in his proposed claim that he was injured on February 28, 2002
while an inmate at Green Haven Correctional Facility (hereafter Green Haven)
because of the dangerous condition Defendant's agents allowed to exist in his
cell. [See, Proposed Claim, ¶¶ 2-4]. Specifically, he alleges
that the cell window had a defective latch, and suddenly swung open and crashed
down on Claimant's head while he was sitting on his bed, causing him to bleed
profusely and suffer a deep gash in his head. [Id]. He asserts that
Defendant had notice of the dangerous condition because "numerous work orders
had been submitted to have the windows repaired" [See, Affidavit,
¶4]; and "several actions have been brought to recover damages for the same
type of incident predicating this claim." [Proposed Claim, ¶5].
Claimant indicates that after he was injured, he filed a facility grievance
with Green Haven to secure the repair of the window in his cell. The Inmate
Grievance Resolution Committee (hereafter IGRC) in a "Response" dated April 25,
2002, indicated that the window was repaired on April 15, 2002, and also
indicated that it "agree[d] that all past and present work orders pertaining to
J. Block windows (to repair them) be honored as soon as possible as they present
a hazard to all inmates locking in J. Block." [See, Affidavit
¶¶ 5 -6, and Exhibit].
Thereafter, Claimant avers he verified a claim for filing in this Court on May
23, 2002, and mailed it by regular mail on the same day to the Court; and by
certified mail, return receipt requested to the Attorney General's office.
[Affidavit ¶¶7 and 15]. Perhaps because of the Memorial Day weekend,
he states, officials at Green Haven did not mail the Claim until May 28, 2002.
, ¶16]. The Court received the claim on May 30, 2002 [See,
, Exhibit "B"], but returned the claim to Claimant on June 5, 2002
without filing it based upon his failure to either pay the $50.00 filing fee, or
move for reduction of the filing fee under Civil Practice Law and Rules
§1101(f). The Court provided him with the materials for making an
application for a fee reduction, and he asserts that he returned the completed
application on June 10, 2002. [Affidavit, ¶¶
He indicates he was served with a copy
of Defendant's Answer. [Ibid
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (1) whether the delay in filing the claim was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely file and the failure to serve upon the
Attorney General a timely claim or notice of intention to file a claim; and (6)
whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. See,
e.g., Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d
Dept 1991). The presence or absence of any particular factor is not dispositive
Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement
System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981
(1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed "...at any time before an action asserting a like claim against a
citizen of the state would be barred under the provisions of article two of the
civil practice law and rules...." Court of Claims Act § 10(6). Here, the
applicable statute of limitations is three (3) years, thus the motion is timely.
Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See,
e.g., Jackson v State of New York, Claim No. NONE, M-64481, Midey, J.
filed February 19, 2002.
Claimant indicates he "is a layman of the law and was unable to litigate this
claim on his own. As such he had no choice but to wait until he found someone
who could help him with this claim, thus explaining his May 23, 2002 preparation
of it. Nevertheless, as Rivera made diligent efforts to timely serve the claim
upon the court, the delay is excusable." [Affidavit, ¶17].
His mere incarceration, and movement within the system, and any difficulty in
obtaining representation by counsel or otherwise conferring with counsel, does
not constitute a reasonable excuse in the nature of a disability, or otherwise.
See, Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl
1978). There must be some showing that the circumstances of his incarceration
prevented claimant from taking effective steps to perfect his claim, or contact
an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept
1971). Claimant has made no such showing, thus this factor weighs against
Similarly, his claim of lack of knowledge of the law and an inability to retain
counsel do not constitute acceptable excuses. Innis v State of New York,
92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of
New York, 156 AD2d 962 (4th Dept 1990).
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant's motion. The
materials presumably filed with the Claimant's grievance, as well as any work
orders are available to Defendant. Since, the Defendant served an Answer it
received a copy of the claim, and thus had notice of its contents. The passage
of time has not been so great that the State's ability to investigate is impeded
to its prejudice. Cf
, Edens v State of New York
, 259 AD2d 729 (2d
Dept 1999) (Two years and two and one-half months from date of
. Additionally, the lack of opposition by the State prevents any
real consideration of prejudice since none has been asserted. See
Cole v State of New York
, 64 AD2d 1023, 1024 (4th Dept
No other remedy is available.
Accordingly, these factors weigh in favor of granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has made the requisite showing of merit in order to permit late
filing of his claim.
Although the State has a duty to protect inmates from foreseeable risks of
harm, it is not the insurer of inmate safety. Its duty is to exercise
"reasonable care under the circumstances..." [Basso v Miller, 40 NY2d
233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that
the State did not create the dangerous condition, a Claimant must show that the
State had actual or constructive notice of the condition and failed to act
reasonably to remedy it. Gordon v American Museum of Natural History, 67
NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual
notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st
Dept 1984), affd, 64 NY2d 670 (1984). With respect to
constructive notice, any "...defect must be visible or apparent and it must
exist for a sufficient length of time prior to the accident to permit...[a
defendant] to discover and remedy it...(citation omitted)." Gordon v
American Museum of Natural History, supra, at 837.
Based upon the uncontradicted facts presented in Claimant's application, he has
shown for late claim purposes that the State may have had actual or constructive
notice of a dangerous condition and failed to cure it. Those foreseeable
dangerous conditions which are not remedied within a reasonable time may
establish liability on the State's part, [Gordon v American Museum of Natural
History, supra], assuming that proximate cause and actual damages are
proven as well.
Accordingly, Claimant's motion for permission to file a late claim is hereby
granted. Claimant is directed to serve his claim upon the Attorney General, and
to file a Claim identical to the proposed Claim, with the Chief Clerk of the
Court of Claims within thirty (30) days from the date of filing of this decision
and order in the Clerk's office, with such service and filing to be in
accordance with the Court of Claims Act, with particular reference to
§§10, 11 and 11-a, and the Uniform Rules for the Court of