Notice of Motion, Affirmation in Support
Affirmation in Opposition 4
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (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 meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
Even though claimant has failed to submit a supporting affidavit as required by
CPLR Rule 2214(b) and § 206.9(b) of the Uniform Rules for the Court of
Claims, the Court will consider this application based upon the papers submitted
by claimant. A review of these papers, however, reveals that claimant has only
addressed the factor of excuse, and he has provided no information whatsoever
with regard to the remaining five specific factors which must be considered by
the Court in this type of application.
With respect to claimant's excuse for not having timely initiated a claim,
claimant states that the delay resulted from his pain and suffering, medical
trips, his transfer from one correctional facility to another, his inability to
obtain access to a law library, and his failed efforts to obtain counsel to
represent him in this matter.
Although physical or mental incapacity may sometimes be considered an adequate
excuse for the failure to institute a timely action, more than unsupported
assertions from the claimant are needed to establish such incapacity (Cabral
v State of New York, 149 AD2d 453). Similarly, the fact that claimant is
incarcerated for the entire period in which he was required to institute his
claim is insufficient, in and of itself, to establish an acceptable excuse
(Plate v State of New York, 92 Misc 2d 1033). Claimant must make an
affirmative showing that the particular circumstances of his incarceration
prevented him from timely serving and filing his claim (Bommarito v State of
New York, 35 AD2d 458). Finally, a claimant's inability to obtain the
services of an attorney does not provide an acceptable excuse to justify a
claimant's delay in timely instituting his claim (Simpson v State of New
York, 96 AD2d 646).
Based on the foregoing, the Court finds that claimant has not established an
acceptable excuse for his failure to timely institute his claim.
In his "complaint"
, claimant alleges that he
slipped and fell in front of a building at Oneida Correctional Facility due to
the failure of the State to remove snow and ice from the sidewalk.
In order to establish a meritorious cause of action, a claimant must only show
that the proposed claim is not patently groundless, frivolous, or legally
defective, and that there is reasonable cause to believe that a valid claim
exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d
In order to succeed on this claim, not only must claimant establish that he
slipped and fell on ice and snow, but also that the State either created the
dangerous condition, or had actual or constructive notice of that condition and
failed to correct the dangerous condition within a reasonable period of time.
Based upon the limited information provided by claimant to the Court on this
motion, claimant has not sufficiently addressed these issues, which precludes
the Court from determining whether a meritorious cause of action against the
State may exist.
With respect to the "notice", "opportunity to investigate", and "lack of
prejudice factors", claimant has wholly failed to address these issues in his
motion papers. Again, based on the limited information available to the Court,
the Court must find that the State did not have notice of the essential facts
constituting the claim, or an opportunity to investigate the circumstances, and
that the State would therefore be prejudiced should the Court permit a claim to
be served and filed at this date.
Although neither party has addressed the issue of whether claimant has another
available remedy, it does not appear that any such alternative remedy exists.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979, 981) and none of the factors can require denial as a matter of law.
Therefore, after weighing and considering all of the factors under Court of
Claims Act § 10(6), it is the opinion of this Court that claimant
should not be allowed to serve and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-68062 is hereby DENIED.