New York State Court of Claims

New York State Court of Claims

BIGAJ v. STATE OF NEW YORK, #2003-034-008, , Motion No. M-67109


Claimants' motion to file a late Claim is granted. Motion for leave to amend caption of "Notice of Claim" is denied. Claimants did not delay in the pursuit of their Claim, but engaged in several procedural missteps along the way. Defendant was aware of their Claim, had the opportunity to investigate, and will not be prejudiced by the late filing of the Claim.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
November 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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"[1] previously served upon the Attorney General on July 29, 2002. The following papers have been submitted for review:

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 motion;

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 County.

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' application.

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.

November 10, 2003
Buffalo, New York

Judge of the Court of Claims

[1] There is no such document in the Court of Claims. There is a Notice of Intention to File a Claim or a Claim.