New York State Court of Claims

New York State Court of Claims

SWAN v. THE STATE OF NEW YORK, #2004-009-57, Claim No. NONE, Motion No. M-68218


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:
BY: Robert A. Quattrocci, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 17, 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, Affirmation, with Exhibits (Including Affidavit of Cynthia Swan as Exhibit A, Proposed Claim as Exhibit B, and Affidavit of Barbara Lewis as Exhibit D)..1,2

Affidavit in Opposition, with Exhibits 3

Memorandum of Law in Opposition 4

Affidavit of Howard W. Gordon, with Exhibits 5

Reply Attorney Affirmation 6

Memorandum of Law (Reply) 7

In her proposed claim, claimant alleges that on February 22, 2003, she was injured when she slipped and fell on a sidewalk on the Campus of the State University of New York at Oswego ("SUNY Oswego") . At that time, claimant was employed by Auxiliary Services and was walking to work at Lakeside Hall from the employee parking lot. She alleges that a major construction project was ongoing at the time on the campus, and as a result, certain portions of the sidewalk were fenced off, and that large refrigeration units also blocked a portion of the sidewalk. She alleges that the State failed to properly maintain the sidewalk and walkways, allowing snow and ice to accumulate, which caused her 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 states that she did not bring a claim because she was unaware of the severity of her injuries until September, 2003 when she was taken out of work. However, at the time of her accident, claimant was certainly aware that she had suffered some type of injury as a result of her fall. Moreover, in the Court of Claims a claimant may serve a notice of intention to file a claim within the 90 day statutory period, which extends a claimant's right to institute a claim based on negligence for a period of two years from the date of the incident (Court of Claims Act § 10[3]). A claimant does not necessarily have to set forth her items of injuries in such a notice, since its purpose is to simply place the State on notice that a claim may be served and filed in the future. Therefore, in this case, even though claimant did not know the extent of her injuries, she still had the opportunity to serve a notice of intention and preserve her right to institute a claim, which she failed to do (see Atterbury v State of New York, 26 Misc 2d 422).

The Court, therefore, finds that claimant has not provided an acceptable excuse for her failure to timely proceed in this matter.

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 case, claimant alleges that the State failed to properly maintain the sidewalk and walkway in front of Lakeside Hall, and actually created the hazard due to the fencing and refrigeration units which blocked a portion of the sidewalk. Based on these allegations, the Court finds, for purposes of this application, that claimant has indeed established the appearance of a meritorious claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this matter, there is no dispute that the first notice of this accident received by officials at SUNY Oswego was not acquired until a "notice of lien" was received on August 6, 2003. This notice made reference to a Workers' Compensation claim for claimant based upon the incident which occurred on February 22, 2003. Shortly thereafter, SUNY Oswego also received a copy of the Workers' Compensation Accident Report ("C-2") on August 27, 2003. As set forth in the affidavit of Howard W. Gordon (see Item No. 5), the executive assistant to the President at SUNY Oswego, officials at SUNY Oswego had absolutely no knowledge of the incident involving claimant until these documents were received. It is therefore apparent that the State did not have any notice of the essential facts constituting the claim within 90 days of the incident. Based upon this total lack of notice, officials at SUNY Oswego had no opportunity to conduct any investigation whatsoever into the circumstances underlying the claim.

Since the State did not have any notice, nor any opportunity to investigate the circumstances underlying the claim, and due to the transitory nature of the conditions at this construction site, the State contends that it would be substantially prejudiced should it have to defend this claim. However, even if SUNY Oswego had received notice of this accident within the statutory 90 day period, the State could very well have faced the same difficulties in conducting a meaningful investigation, due to the transitory nature of the conditions at the time of the incident.

Furthermore, and as set forth in claimant's reply attorney affirmation (see Item 6), claimant argues that the fencing and equipment which blocked the sidewalk during the construction project were present for several months, and that the State should be able to defend this claim based upon information and documents produced and maintained throughout the course of the construction project. Accordingly, even though the State lacked both notice and an opportunity to investigate, the Court is not convinced that the State would suffer substantial prejudice should it have to defend this claim.

Finally, it is apparent that the claimant has another available remedy, since she has applied for, and apparently received, Workers' Compensation benefits, even though such benefits may only be a partial remedy (see Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915).

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 her proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-68218 is hereby GRANTED; and claimant is directed to file and serve her 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.

November 17, 2004
Syracuse, New York

Judge of the Court of Claims