New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2003-030-539, Claim No. NONE, Motion No. M-66459


Pro se inmate's motion for permission to file late claim granted. Claimant injured by dangerous condition in prison yard.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
May 5, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read on Claimant's motion for permission to

late file a Claim brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion, Affidavit of Allen Porter, Claimant, dated February 14, 2003 and accompanying exhibits

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. [Ibid, 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[1] and the pipe was removed on March 26, 2003. [Affirmation of Assistant Attorney General, Exhibit "1"].

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.[2] 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 " 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 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.

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 Claims.

So Ordered.

May 5, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Court notes that this Claim had been served - albeit untimely - before the work order to remove the pipe was issued.
[2] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true....(citations omitted)."]