Reply, with Exhibits 5
In his proposed claim, claimant alleges that on June 9, 2003, while he was
incarcerated at Marcy Correctional Facility, he suffered personal injuries when
the front wheel of his wheelchair became lodged in a hole on a wheelchair access
ramp at the B-2 Housing Unit at the facility, causing him to fall.
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).
With regard to excuse, claimant, proceeding pro se, asserts that he is a
layman, and that he relied upon the assistance of two fellow inmates who failed
to comply with the statutory time requirements for the service and filing of his
claim. Such an excuse, however, is equivalent to ignorance of the law, which is
not an acceptable excuse for delay (Matter of E.K. v State of New York,
235 AD2d 540). Furthermore, incarceration, in and of itself, is not an
acceptable excuse (Plate v State of New York, 92 Misc 2d 1033). The
Court therefore finds that claimant has not provided an acceptable excuse for
his failure to timely serve and file his claim.
The next factor, often deemed the most critical, is whether the
proposed claim has the appearance of merit. If claimant cannot establish a
meritorious claim, it would be an exercise in futility to grant a late claim
application (Savino v State of New York, 199 AD2d 254; Prusack v State
of New York, 117 AD2d 729). In order to establish a meritorious cause of
action, claimant has the burden to 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 this matter, defendant contends that claimant has failed to establish a
meritorious claim, in that he has failed to support his application with any
expert affidavit as to the design and construction of the aforesaid wheelchair
However, claimant has asserted that his fall from his wheelchair was caused
when one of his front wheels became lodged in a hole in the ramp. Such an
allegation appears to be based more on negligent maintenance, rather than design
or construction. Under such circumstances, the Court finds that an expert
affidavit is not needed at this stage of the proceedings to establish the
appearance of merit. Accordingly, for purposes of this application only, the
Court finds that claimant has established the appearance of a meritorious claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. With regard to notice, a "report of inmate injury"
was prepared following this incident on June 9, 2003. Additionally, following
the incident, claimant received medical treatment at the facility. The Court
finds that under the circumstances, such information was sufficient to place the
State on notice that a potential claim might be forthcoming, and also provided
the State with an opportunity to investigate the circumstances underlying such
incident. As a result, the Court finds that the State will not suffer any undue
prejudice should it be obligated to defend this claim.
The Court also finds that claimant does not appear to have any other available
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.
Accordingly, after a review of the papers submitted herein, and after weighing
and considering all of the factors set forth under Court of Claims Act §
10(6), it is the opinion of this Court that claimant should be allowed to serve
and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-67957 is hereby GRANTED; and claimant is directed to
file and serve his proposed claim, properly verified, within 45 days from the
date of filing of this decision and order in the Clerk's office, with such
service and filing to be in accordance with the Court of Claims Act, with
particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the
Court of Claims.