New York State Court of Claims

New York State Court of Claims

MAHMOUD v. THE STATE OF NEW YORK, #2004-009-72, Claim No. NONE, Motion No. M-68811


Claimant's motion seeking 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:
October 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, proceeding pro se, 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:
"Late Notice of Claim", Affidavit in Support, Proposed Claim, with Attachments 1,2,3

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 floor.

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.

October 27, 2004
Syracuse, New York

Judge of the Court of Claims