Claimants have applied for leave to file a late Claim pursuant to Court of
Claims Act § 10(6), or in the alternative, leave to amend the caption of a
"Notice of Claim"
previously served upon the
Attorney General on July 29, 2002. The following papers have been submitted for
1. Notice of Motion, dated July 14, 2003, filed July 16, 2003;
2. Affidavits of Barbara A. Bigaj, sworn to July 9, 2003, and Courtney C.
Genco, Esq., sworn to July 14, 2003, with attached exhibits, in support of the
3. Claimant's "Notice of Claim," acknowledged July 25, 2002;
4. Affidavit of Matthew J. Duggan, Esq., sworn to September 18, 2003, in
opposition to the application;
5. Affidavit of Courtney C. Genco, Esq., sworn to September 4, 2003, in
further support of the motion.
On consideration the Court will grant the relief requested under Court of
Claims Act § 10(6), but deny amendment of the "Notice of Claim."
Claimants seek to recover for personal injuries and derivative losses that
resulted from an incident that allegedly occurred on May 10, 2002, while Barbara
A. Bigaj was jogging on Orchard Park Road in the Town of Orchard Park. Ms.
Bigaj contends that as she ran in the area of 3144 Orchard Park Road she was
struck by a construction sign that fell on her. As a result, she reportedly
underwent emergency room treatment at Mercy Ambulatory Center for injuries to
her thighs that include an indentation that remains to this date. It is
Claimants' position that Defendant was negligent in failing to adequately secure
and place the sign, failing to adequately maintain its premises, and in allowing
a dangerous condition to exist. It appears that the area of roadway in question
had been the subject of a construction contract between Defendant and A & L,
Inc., and Claimants also have commenced action against that construction
company, as well as the Town of Orchard Park, in Supreme Court, Erie
On July 29, 2002, Claimants served the Attorney General with a "Notice of
Claim." They urge that they had intended that document to constitute a Claim
proper, rather than a Notice of Intention to File a Claim, and that their
failure to file their pleading within ninety days of accrual, as required under
Court of Claims Act § 10(3), was the result of oversight on the part of
their attorneys. On that basis they now seek to file a late Claim, or, in the
alternative, leave to amend the caption of the "Notice of Claim" to read "Notice
of Intention to File a Claim," so as to extend their time for the filing and
service of their Claim. The Court notes that the "Notice of Claim" was
acknowledged before a notary public, but not verified in the manner set forth in
CPLR 3020(a). Verification of a notice of intention or claim is mandated under
Court of Claims Act § 11. Moreover, that writing did not recite the total
damage sum claimed, again as required under Court of Claims Act § 11.
Court of Claims Act § 10(3) requires that a personal injury claim based
upon negligence be commenced within ninety days of accrual, unless a written
notice of intention to file a claim is served upon the Attorney General within
that same ninety day period, in which case the claimant is afforded up to two
years from accrual to file that claim. Relief from the failure to take timely
action is authorized under section 10(6). The statute sets forth six factors
among those to be considered, although such determinations rest within the broad
discretion of the reviewing court, and the presence or absence of any one factor
is not dispositive (Bay Terrace Coop. Section IV v New York State Employees'
Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979,
981). Those listed factors consist of the following: whether the delay in
filing the claim was excusable; whether the State had notice of the essential
facts constituting the claim; whether the State had an opportunity to
investigate the circumstances underlying the claim; whether the claim appears to
be meritorious; whether the failure to file a timely claim or notice of
intention has resulted in substantial prejudice to the State; and whether the
Claimant has any other available remedy.
Of the six factors, the appearance of merit has been characterized as the most
decisive, since it would be futile to permit a meritless claim to proceed
(see Dippolito v State of New York, 192 Misc 2d 395, 396-397; Jolley v
State of New York, 106 Misc 2d 550, 551). To meet that burden a movant must
establish that the proposed claim is not patently groundless, frivolous or
legally defective, and that from a review of the entire record there is
reasonable cause to believe that a valid claim exists (see Dippolito v State
of New York, at 396-397; Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1, 11-12). Here, it is Mrs. Bigaj's contention that she
sustained injury as a result of the failure of Defendant to properly secure or
anchor construction signs at the site, such that a sign blew over and struck her
as she was jogging. A police report for the Orchard Park Police Department
prepared in conjunction with the incident provides some corroboration for the
incident. In the Court's view the submissions are sufficient to meet the low
threshold for merit required herein. The Court rejects Defendant's assertion
that insufficient proof has been submitted.
Three interrelated factors, notice to Defendant, the opportunity to
investigate, and substantial prejudice, also weigh in favor of a grant of
relief. Claimants' timely service of a "Notice of Claim," even if inartfully
designated and verified, and intended to constitute a Claim proper, would have
placed Defendant on notice of the incident within ninety days of its occurrence.
Claimants' counsel also has represented that she had been in ongoing contact
with the State's insurance carrier, which investigated the claim and had been
supplied with information regarding Claimants' medical expenditures. Given the
timely notice that Defendant had received, it will not be substantially
prejudiced by the granting of this motion (see Matter of Crawford v City
University of New York, 131 Misc 2d 1013, 1015-1016).
The first factor listed, whether the delay in filing the Claim is excusable,
affords this Court the opportunity to articulate its principal consideration in
exercising its discretion to grant relief under section 10(6). Here, Claimants
did serve what readily would suffice as a notice of intention within ninety days
of accrual. They did not delay in their pursuit of the matter; rather, they
engaged in several missteps in their timely pursuit of their claim. In view of
the recent determination in Graham v Goord, 301 AD2d 882, that the
complete absence of a verification within a claim is a fatal jurisdictional
defect, this Court is reluctant to deem Claimants' notarial mistake in the
verification of their "Notice of Claim" to be a simple irregularity, readily
capable of correction, as had earlier been allowed by the Court of Claims
(Mangum, J.) in Williams v State of New York, 77 Misc 2d 396. For that
reason the Court must deny Claimants' request to amend the caption of their
earlier notice. Nevertheless, the underlying rationale of Williams, that
relief from defects in the verification process is appropriate in the absence of
some demonstrated prejudice, weighs in favor of excusing Claimants' mistake
through the grant of a late claim under section 10(6).
One factor, that of another available remedy, does favor Defendant's position,
but is more than outweighed by the considerations that support Claimants'
Based upon the above it is
ORDERED, that Claimants' motion for leave to file a late Claim is granted.
The Claim is to be filed and served within thirty days of the filing of this
Decision and Order, in conformity with the requirements of Court of Claims Act
§§ 10, 11 and 11-a, including all verification and ad damnum
requirements, and is to be designated as such, rather than a "Notice of Claim,"
as proposed in Exhibit A attached to the Notice of Motion. The balance of
Claimants' motion is denied.