New York State Court of Claims

New York State Court of Claims

BUSH v. THE STATE OF NEW YORK, #2004-009-55, Claim No. NONE, Motion No. M-67957


Claimant's application for permission to serve and file a late claim was granted.

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:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim 1,2,3

Affirmation in Opposition, with Exhibits 4

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 ramp.

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 remedy.

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.

September 23, 2004
Syracuse, New York

Judge of the Court of Claims