New York State Court of Claims

New York State Court of Claims

HERRING v. THE STATE OF NEW YORK, #2004-015-412, Claim No. NONE, Motion No. M-68356


Synopsis


Inmate who alleged personal injury due to fall in shower area of correctional facility denied late claim relief where proposed claim lacked sufficient detail for court to assess claim's potential merit.

Case Information

UID:
2004-015-412
Claimant(s):
EUGENE HERRING The caption was amended by the Court sua sponte to name the only proper defendant.
Claimant short name:
HERRING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption was amended by the Court sua sponte to name the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68356
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Eugene Herring, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's application for an order permitting service and filing of a late claim pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim[1] filed with the motion papers states the following:
The nature of my claim is as follows: On December 12th 2003, while I was exiting the shower in the D/3 housing unit area (southside), claimant was caused to slip and fall injuring his left knee. As a result to the incident, claimant was hospitalized and later told that surgery would be needed to correct the condition of my injury.

Defense counsel opposed the motion on the grounds that movant's delay of more than four months in seeking late claim relief is not excusable, no proposed claim was attached to the motion and that the motion papers lack factual detail from which the Court might determine the potential merit of the claim.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim appears to assert a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced by movant for the failure to timely serve and file a claim with respect to the December 12, 2003 slip and fall accident is his ignorance of applicable legal requirements. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16) and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. It appears from a copy of a DOCS Central Office Review Committee decision attached to the motion and dated February 25, 2004 that movant reported a slip and fall incident to DOCS by filing an inmate grievance. This document is within the defendant's possession and was filed within 13 days of the incident (Remley v State of New York, 174 Misc 2d 523, 524). Under these circumstances, the Court finds that the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970).

It cannot be said upon this record that the movant appears to possess a potentially valid cause of action against the State of New York. The movant has failed to provide any factual detail regarding either the facts underlying the alleged slip and fall or the manner in which the actions of the State caused or contributed to the happening of the incident (Calco v State of New York, 165 AD2d 117, lv denied 78 NY2d 852). It is settled that "[a] general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891; Sevillia v State of New York, 91 AD2d 792). Because the movant has failed to provide any facts tending to show the existence of a potentially viable claim for negligence the Court finds that the proposed claim lacks merit.

As to the final factor, it does not appear that movant has any other remedy available with respect to his alleged personal injury.

In the absence of a reasonable excuse for the failure to timely serve and file a claim and in light of the highly questionable merit of the proposed claim, the court declines to exercise its discretion to permit the filing of a late claim (Gonzalez v State of New York, 299 AD2d 675; Perez v State of New York, 293 AD2d 918). Accordingly, movant's application for such relief is denied.


June 28, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 20, 2004;
  2. Verification of Eugene Herring sworn to April 20, 2004;
  3. Affirmation of Michael W. Friedman dated May 11, 2004 with exhibit.

[1]A document entitled "Notice of Intention to File a Claim".