3 Affirmation of J. Gardner Ryan, Assistant Attorney General, dated April 14,
2003, and accompanying exhibit
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Claimant alleges in his proposed Claim that on September 26, 2002 at
approximately 10:20 a.m., while walking through the west recreational yard at
Green Haven Correctional Facility (hereafter Green Haven) he sustained an injury
to the "big toe" on his right foot. [Affidavit of Allen Porter, Exhibit "B"]. He
alleges that the injury was caused by a broken off piece of jagged metal pole
protruding from the ground and alleges that the "Defendant had constructive
and/or actual notice of the dangerous condition in its recreational yard."
[Ibid, ¶7]. The injuries complained of are "bleeding, soreness, and
redness to toe," all treated at the facility medical clinic. There is no
detailed allegation as to any permanent injury, nonetheless he seeks
compensation for "permanent injury" in the amount of $50,000.00, "physical pain
and discomfort" in the amount of $50,000.00 and "psychological, emotional and
physical pain" in the amount of $100,000.00.
On or about November 22, 2002 Claimant filed a facility grievance, asking that
the object in the west yard be removed. [Affidavit of Allen Porter, Exhibit
"C"]. The Inmate Grievance Resolution Committee (hereafter IGRC) agreed that
the object should be removed, and recommended its removal to the Superintendent.
Exhibit "D"]. Claimant noted on the IGRC form that he "agreed"
with the IGRC recommendation while simultaneously noting he wished to appeal to
the Superintendent. [Id]
. A work order for removal of the pipe was
submitted on January 6, 2003
and the pipe was
removed on March 26, 2003. [Affirmation of Assistant Attorney General, Exhibit
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.
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.
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
, 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
, 55 NY2d 979, 981 (1982); Broncati v State of New
, 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 has not expired, 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.
Although his claim accrued on September 26, 2002 Claimant chose to defer
advancing his Claim until December 23, 2002. At that time, he avers, he was
unable to gain access to a copy machine, but had his one copy notarized on
December 23, 2002, and sent certified mail, return receipt requested to the
Office of the Attorney General the following day.[Affidavit of Allen Porter,
¶¶16-19]. The Attorney General's Office received the claim on December
30, 2002. [Ibid, Exhibit "A"]. Although Claimant was certainly entitled
to the full benefit of the ninety (90) day statute of limitations, attempting to
meet the deadline in the face of what are traditional mail delays surrounding a
holiday is unreasonable.
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
area where the accident occurred was the subject of a facility grievance, well
within the ken of Defendant's agents. The opportunity to investigate or
document the accident site has not been lost due to the removal of the object at
Claimant's own request since the defect was already documented. Indeed, the
object was removed in March, 2003: well after this Claim was served. 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
accrual). Accordingly, these factors weigh in favor of granting the
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.
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 of the Uniform Rules for the Court of