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
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
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