New York State Court of Claims

New York State Court of Claims

DEHONEY v. THE STATE OF NEW YORK, #2003-030-551, Claim No. NONE, Motion No. M-66564


Motion for permission to late file claim denied. No serious injury shown. No appearance of merit.

Case Information

SAMUEL DEHONEY Caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
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:
July 10, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read and considered on Claimant's motion

for permission to file a late claim pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion, Affidavit in Support by Samuel Dehoney, Claimant, and accompanying exhibits

  1. Affirmation of J. Gardner Ryan, Assistant Attorney General and accompanying exhibits
In a Statement of Claim attached to his moving papers, Claimant alleges that on October 22, 2002 he was injured when he fell off a truck driven by a man named Lou during his work detail delivering laundry within Downstate Correctional Facility (hereafter Downstate). He alleges that the truck was not equipped with any safety guards, rails or straps, and that these omissions had been brought to the driver's attention numerous times. He alleges that he sustained serious injuries, in that he damaged his ankle and back, suffered a concussion, and currently suffers from migraine headaches and loss of sleep.

In his Affidavit in Support of his motion, Claimant indicates that he was unaware that the "notice of claim had to be mailed certified mail with a return receipt. This lack of knowledge was compounded by incarceration in the state prison system and my limited ability to confer with council (sic). At the precise of the deadline, I was transferred to another facility where I was new and held in the reception unit with limited access to anything besides the stamps I used to mail my claim." [Affidavit in Support, ¶2]. He argues that the State had notice because he had filed a facility grievance which triggered an investigation, and ultimate resolution of the grievance by the placement of proper safety guards on the truck.

Finally, he states his claim is meritorious, and he has no other remedy.

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 " 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, Motion No. M-64481 (Midey, J. signed February 19, 2002).

His mere incarceration, and movement within the system, and the asserted difficulty in 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 him.

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. Any pictures or other documentation of the incident would presumably be maintained by Defendant's agents, as well as any internal documentation of the incident. It is true that the grievance would have a different focus as pointed out by Defendant - toward remedying a dangerous situation at the facility as opposed to providing Claimant redress - however details of the incident would nonetheless be preserved to some extent. Although Defendant states in its Affirmation that no State employees witnessed the incident, Claimant has appended copies of the statements given by inmate witnesses to the incident originally appended to his grievance. This raises factual issues but does not prevent a finding of notice. 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). Indeed, although the "notice of claim" was not served in accordance with the statutory requirements, it was received by the Attorney General's office, and dealt with substantively by way of the preparation and service of an Answer. [See, Affidavit in Support, Exhibit 1]. Accordingly, these factors weigh in favor of granting the motion.

Claimant may have another remedy available against the driver of the truck, thus this factor weighs against him.

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 not made the requisite showing of merit in order to permit late filing of his claim.

The Court agrees that the provisions of Insurance Law §5102(d) are implicated in this case, involving as it does an alleged fall from a moving motor vehicle. That statute requires in pertinent part that the claimant suffer a
"...personal injury which results in ...dismemberment; significant disfigurement; a fracture;...permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

Without more than the Claimant's subjective complaints concerning pain in his ankle, headaches and lack of sleep, Claimant has not made a sufficient showing of serious injury to establish the appearance of merit for late claim purposes. Significantly absent from his presentation is any independent documentation of his physical condition. It is the Claimant who is in the best position to obtain medical information to substantiate his application for late claim relief.

Additionally, although Claimant has appended a copy of his proposed Claim, as required[1], the Court cannot ascertain whether the particulars of the claim are stated, including what permanent injuries are alleged; [See, Court of Claims Act §11(b); Sinski v State of New York, 265 AD2d 319 (2d Dept 1999)], nor does the proposed claim comply with the provisions of 22 NYCRR §206.6 requiring that items of damages be detailed and that separate causes of action be numbered separately.

Accordingly, Claimant's motion for permission to file a late claim is in all respects denied.

July 10, 2003
White Plains, New York

Judge of the Court of Claims

[1] Court of Claims Act § 10(6) states in pertinent part: "....The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application...."