New York State Court of Claims

New York State Court of Claims

KULCZYK v. THE STATE OF NEW YORK, AND NEW YORK STATE DEPARTMENT OF CORRECTIONS, #2004-009-52, Claim No. NONE, Motion No. M-68062


Synopsis


Claimant's application seeking permission to serve and file a late claim was denied.

Case Information

UID:
2004-009-52
Claimant(s):
MARK KULCZYK
Claimant short name:
KULCZYK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, AND NEW YORK STATE DEPARTMENT OF CORRECTIONS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68062
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
MARK KULCZYK, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 13, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought this motion seeking an order "Extending Plaintiffs' (sic) Time to Serve the Complaint (sic)" (see Claimant's Notice of Motion). In its discretion, the Court will treat this motion as an application seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support[1], Complaint[2] 1,2,3


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"[3], 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 1).

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.


September 13, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] Claimant did not submit an affidavit in support of this motion as required by CPLR Rule 2214(b), since he failed to submit an oath, made before a Notary Public, in which he has sworn to the truth of the statements made therein.
[2] The Court is treating this document as the proposed claim, required to be submitted pursuant to § 10(6).
[3] See Footnote No. 2.