The court read and considered the following papers on claimant's motion for
permission to file a late claim: Notice of Motion, Affirmation and Exhibit,
Affirmation in Opposition and Exhibits, Reply Affirmation and Exhibit.
Claimant was allegedly injured on July 14, 2003 when she slipped and fell while
she was descending stairs into a pool at Riverbank State Park, an event she
attributes to the allegedly deteriorated and defective condition of the stairs.
She served a claim on the attorney general on October 9, 2003 , within 90 days
of accrual, but filed it with the clerk of the court on October 13, 2003. Since
she neglected to pay the filing fee or apply for waiver of the fee (Court of
Claims Act § 11-a), the claim was not filed but was returned by the clerk
of the court. By that point, counsel realized that the period in which the
claim could be filed without permission of the court had expired (Court of
Claims Act section 10). The instant application, seeking permission to late
file pursuant to Court of Claims Act section 10(6), ensued.
The 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).
Here, although the reason for claimant's delay - ignorance of the court's
filing requirements - cannot be deemed "excusable," the papers before the court
reveal that not only was defendant timely served with the proposed claim, but
that the incident was investigated and documented by defendant's employees when
it occurred. Claimant's failure to properly file the claim within the statutory
period did not result in any prejudice whatsoever to defendant's ability to
defend the claim.
Defendant's opposition to this motion centers around the apparent merit of the
proposed claim. In this regard, claimant's burden is merely to show that the
proposed claim is not patently groundless, frivolous or legally defective and
that there is reasonable ground to believe that a cause of action exists
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Since
no affidavit from the claimant was submitted, the only information before this
court that addresses this crucial issue is the proposed claim. While the court
does not agree with a number of points made by defense counsel in relation to
the proposed claim, defendant raises three issues with respect to that document
that fatally impair any value it may have had for the purpose of this
First, defendant points out that the verification page attached to the proposed
claim appears to have been prepared for another document. It appears to be part
of a printed form, while the proposed claim is typed (with plenty of blank space
on the last page that could have been used for a verification), not on a form,
and the verification refers to a "notice of claim" while the proposed claim is
titled, properly, a "claim." The verification was signed by claimant, in
Richmond, Virginia, on August 11, 2003, yet it states, in paragraph 1, that the
"post office address of the claimant herein is 241 Haden Avenue, New York, New
York 10028," while the accident report lists claimant's address as 2410 Haden
Avenue, Richmond, Virginia. The proposed claim states that claimant was injured
at the outdoor pool at Riverbank State Park while the accident report states
that it happened at the indoor pool.
These various discrepancies, and particularly the fact that there is no way the
claimant would verify, as she sat in Richmond, Virginia, a document stating that
she resided at a presumably nonexistent address in New York City, leads the
court to conclude that it is unlikely that claimant ever read the proposed
Thus, it is of no probative value and
the claimant's papers are thus insufficient to make the evaluation that section
10 (6) requires.
Accordingly, the motion is denied without prejudice fo a further application
made upon proper papers, which shall include a new proposed claim and an
affidavit from the claimant fully describing the subject incident.