New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK AND RIVERBANK STATE PARK, #2003-030-910, Claim No. None, Motion No. M-67575


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:
Kahn, Gordon, Timko & Rodriquez, Cynthia P. Camacho, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 30, 2003
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, 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[3]). 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 motion.

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 claim.[1] 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.

December 30, 2003
White Plains, New York

Judge of the Court of Claims

[1]After being advised by defendant's opposition papers of the discrepancy with respect to claimant's address, claimant's counsel re-typed the first page of the claim to indicate the correct address in Virginia and resubmitted it, with the same verification page attached. Obviously, claimant could not swear to the veracity of a document, on August 11, 2003, when that document did not even exist until November 2003.