"Late Notice of Claim", Affidavit in Support, Proposed Claim, with
Affirmation in Opposition 4
In his proposed claim, claimant seeks damages for personal injuries suffered by
him when he allegedly slipped and fell on a wet floor in his housing unit at
Mohawk Correctional Facility, where he was then incarcerated. Claimant alleges
that this incident occurred on July 4, 2003. Claimant further alleges that the
State was negligent in failing to provide proper warning of the wet and slippery
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 was unaware of the time limitations for pursuing a claim
against the State contained in the Court of Claims Act. Such an explanation,
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 factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. In this particular matter, claimant filed a
grievance through the inmate grievance program at Mohawk Correctional Facility
on or about July 24, 2003, seeking compensation for his injuries suffered in
this accident. This grievance was ultimately denied by the facility
superintendent and the central office review committee (see Attachments to Items
1,2,3). By instituting this process, however, officials at the facility were
provided prompt notice of claimant's fall, and the basis of the relief sought by
him, and were also provided with an opportunity to conduct an investigation into
the circumstances related to his fall. It appears, based upon the
superintendent's denial of claimant's grievance, that an investigation was in
fact conducted. The Court therefore finds that under these particular
circumstances, the State was provided with sufficient notice that a potential
claim might be forthcoming, and that it had an opportunity (and apparently
availed itself of that opportunity) to investigate the circumstances underlying
claimant's fall. As a result, the Court finds that the State will not suffer
any undue prejudice should it be obligated 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, claimant alleges that the State did not properly warn inmates of
a potentially hazardous situation by failing to post "wet floor" signs. The
Court finds, for purposes of this application only, that claimant has satisfied
the minimal standards required by Santana and has established the
appearance of a meritorious claim.
It does not appear that claimant has any other available remedy.
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-68811 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.