New York State Court of Claims

New York State Court of Claims

HEYWARD v. THE STATE OF NEW YORK, #2003-033-015, Claim No. None, Motion No. M-66313


Synopsis


Movants application to file a late claim relating to alleged slip and fall is granted.

Case Information

UID:
2003-033-015
Claimant(s):
DWAYNE HEYWARD
Claimant short name:
HEYWARD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66313
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Larry Blisko, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2003
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Dwayne Heyward (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6), relating to an alleged slip and fall due to defective lighting and a littered stairwell.[1]

This action arises out of an accident which occurred on October 9, 2002 on the premises of the State University of New York, the college at Old Westbury. It is alleged that on this date, at approximately 7:00 p.m., movant was descending the stairwell of the Rathskellar building when he slipped and fell due to defective lighting and a littered stairwell (Proposed Claim ¶2). As a result of the fall, movant sustained a fracture of the left ankle and other bodily injuries (id).

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 to be meritorious;

(5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and

(6) whether the movant has another available remedy.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant offers no excuse for the delay in filing while movant's attorney states that the motion is being filed approximately 100 days after the accident (Affirmation of Larry Blisko, Esq. ¶4). Further, it appears movant has an alternate remedy through Workers' Compensation. The Court on occasion has concluded that although Workers' Compensation is an available remedy, it is only a partial remedy and not sufficient to bar a request for permission to file a late claim (Rosenhack v State of New York, 112 Misc 2d 967, 969).

The second, third and fifth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

As stated in the proposed claim, movant was descending the stairwell of the Rathskellar building when he slipped and fell allegedly due to defective lighting and a littered stairwell. Exhibit B to the Affirmation of Larry Blisko, Esq. is a letter to the management office of SUNY College at Old Westbury dated November 29, 2002 from Blisko, stating his client had sustained personal injuries. The letter includes the date of the accident and the premises namely the Rathskellar Building. Exhibit C is the Administrative Decision of the Workers' Compensation Board which was filed ninety-one (91) days after the alleged accident. This letter along with the Workers' Compensation decision provide scant notice to the State as to the location of the incident, but at least does provide an opportunity to investigate (Woodley v State of New York, 88 Misc 2d 889; Crawford v City University of New York, 131 Misc 2d 1013). Therefore, it does not appear that there is substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim.

Movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

In the instant case, movant alleges he slipped and fell due to defective lighting and a littered stairwell in the Rathskellar building. Exhibit C to the Affirmation of Larry Blisko, Esq. is an administrative decision from the Workers' Compensation Board related to the alleged injury to movant. According to the proposed claim, movant sustained a fracture to his left ankle (¶2). The Court concludes that there is an appearance of merit to go forward.

Based on the foregoing, the Court finds that the majority of the statutory factors favor movant's application and therefore grants movant's permission to file a late claim.

The Court directs movant to file and serve a claim within forty-five (45) days after this order is filed and to do so in conformity with the requirements of Court of Claims Act §§10, 11 and 11-a.



June 30, 2003
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]
The following papers have been read and considered on movant's motion for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated January 20, 2003 and filed January 22, 2003; Affirmation of Larry Blisko, Esq., in Support of Motion with annexed Exhibits A-C dated January 20, 2003 and filed January 22, 2003; Affirmation in Opposition of John M. Shields, Esq., dated January 31, 2003 and filed February 3, 2003 and Reply Affirmation of Larry Blisko, Esq., dated February 19, 2003 and filed February 19, 2003.