Correspondence dated August 12, 2004 from Ed J. Thompson, Esq., Assistant
Attorney General 4
In his proposed claim, claimant seeks damages for personal injuries suffered by
him on July 6, 2003, when he was incarcerated at Willard Correctional
Facility. On the day in question, claimant was participating in certain outdoor
functions on an excessively hot day, and alleges that he became sick, lost
consciousness and collapsed due to inadequate medical attention from personnel
at the facility.
Defendant has not opposed the relief sought herein.
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).
Claimant has provided no explanation whatsoever as to why he did not timely
institute a claim seeking damages for his injuries.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. Since claimant was an inmate at the time of this
incident, and subsequently received medical attention at the facility for his
injuries, the State received prompt and timely notice of the incident, and was
provided with an opportunity to timely investigate the circumstances. Although
not submitted with this application, the Court also believes that an injury
report would have been generated, and this report, together with claimant's
medical records, will insure that the State will not be prejudiced should it
have to defend this 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 case, the allegations set forth in the claim are sufficient, for
purposes of this application only, to establish the appearance of a meritorious
claim based upon negligence against the State.
From the papers submitted, it does not appear that claimant has any other
Therefore, 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-68760 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.