New York State Court of Claims

New York State Court of Claims

SIMON v. THE STATE OF NEW YORK, #2003-030-908, Claim No. None, Motion No. M-67447


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:
Ken Simon, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 6, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission

to file a late claim: Notice of Motion, Proposed Claim and exhibit, Affirmation in Opposition

and Exhibits.

The proposed claim contains the following pertinent allegations:
a) on 3/18/02 in Room 306 of the Civil Court, County of Kings, 141 Livingston St., Brooklyn, N.Y. The courtroom was severely overcrowded and completely blocked by people and one baby-stroller. It was impossible to walk across the room from the seating area to the judge's chambers.

b) a contributing cause of the accident was a chair that should have been either fixed to the floor or been fitted with a wooden or rubber brace to prevent slippage. This improperly selected piece of furniture created a hazardous condition that produced slippage when stepped upon in the normal course of walking. (Proposed claim.)
On June 6, 2002, claimant served a notice of claim on the City of New York seeking damages for personal injuries arising out of the subject incident, which apparently involved the claimant falling, although such is not actually stated in any of the papers before the court. He states that he subsequently initiated an action against the City and he seeks permission to "file claim against state in action begun in New York City Civil Court to move case to New York State Court of Claims; since the City of New York is part of New York State and should have had constructive notice." (Notice of Motion.)

Since an action may not be moved from another court to the Court of Claims, defendant has properly treated this motion as one seeking permission to file a late claim against the State pursuant to Court of Claims Act § 10(6). That statute grants the court the discretion to allow the filing of a late claim, upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of the facts constituting the claim, whether defendant had the timely opportunity to investigate, whether defendant would suffer substantial prejudice should late filing be allowed, whether the proposed claim appears meritorious and whether claimant has an alternate remedy (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Although claimant's extremely sketchy papers do not address the issue, it is apparent that claimant's motion is the result of his becoming aware that there is a division of responsibility for maintenance of Unified Court System facilities in the City of New York, with the City responsible for some aspects and the State responsible for others. A litigant's decision to file an action against one entity and not the other can have irrevocable consequences, as the procedures and the courts are different and the time periods short in both cases. The court finds that claimant's confusion in this case was reasonable and that his delay was "excusable" within the meaning of the statute. Nevertheless, the remaining statutory factors all weigh in favor of denying the motion.

Contrary to claimant's contention, the City and the State are distinct, and notice to one is not constructive notice to the other. Defendant had no notice of the subject incident until claimant made the instant motion, some seventeen months after the incident, and did not have the timely opportunity to investigate. To the extent that the court is able to ascertain the precise nature of the negligence with which the State is charged, it appears that the passage of time would cause substantial prejudice in the defense of the claim. Crucially, there are no factual allegations before the court from which one could conclude that there is apparent merit to the allegations of negligence directed against the State, or upon which one could make such an evaluation. Claimant does have a potential alternate remedy in the form of the action against the City.

Accordingly, the motion is denied.

January 6, 2004
White Plains, New York

Judge of the Court of Claims