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 "...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, 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
"...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
Additionally, although Claimant has appended a copy of his proposed Claim, as
, the Court cannot ascertain whether
the particulars of the claim are stated, including what permanent injuries are
Court of Claims Act §11(b); Sinski v State of New
, 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