New York State Court of Claims

New York State Court of Claims



Court granted late claim relief in case involving patron of allegedly defective bobsled who suffered leg injury when bobsled at Mt. Hovenberg slid onto its side during run due to alleged negligence in maintaining it. Defense counsel failed on motion to address issue of potential claim's merit in light of Morgan v State of New York, 90 NY2d 471.

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:
Hacker & Murphy, LLPBy: Patrick L. Seely, Jr., Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 27, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is granted. The proposed claim seeks to recover damages for personal injuries allegedly sustained by the movant on December 28, 2002 when a State owned and operated bobsled on which she was riding at Mt. Van Hoevenberg in Lake Placid, New York tipped over during a run. The movant allegedly sustained injuries to her right knee and shoulder as a result of the alleged negligence of the defendants in maintaining and operating a defective bobsled. Movant did not serve a notice of intention or claim within 90 days of accrual and now moves for late claim relief.

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 sounds in negligence the three-year statute of limitations set forth in CPLR § 214 (5) applies and the instant motion filed within two years of the accident is timely.

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). The statutory factors are not exhaustive nor is 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).

Movant alleges that the delay in filing the claim is attributable to her initial belief that her injuries were transitory rather than permanent in nature. She also points to her New Jersey lawyer's unfamiliarity with the filing and service requirements of the Court of Claims Act. It has long been held that a cause of action accrues "at the time the injury is inflicted, not when the extent of the damages is ascertained" (DeGroff v State of New York, 43 AD2d 993; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 1073). Movant's initial beliefs regarding the severity of her injury do not excuse the failure to timely serve and file a claim. Likewise, inaction on the part of an attorney is not an acceptable excuse (Fenimore v State of New York, 28 AD2d 626; see also Sevillia v State of New York, 91 AD2d 792). This factor weighs against the application.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The proposed claim alleges that movant was injured during the scheduled operation of the bobsled run for hire and that the incident was promptly reported in order to obtain immediate medical attention. In this regard movant submitted a medical incident report bearing the heading Olympic Regional Development Authority Medical Incident Report for Public Gatherings (Movant's Exhibit F) which references both the accident on the bobsled run and that movant was removed from the site by ambulance. Under the circumstances it appears that the defendant received timely notice of the incident and was thereby afforded an opportunity to investigate the circumstances underlying the proposed claim. These factors favor the movant.

Regarding the issue of merit it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The defendant has not addressed the absence of merit in its opposing papers and in the Court's view movant has met the minimal threshold of proof required to establish the potential merit of the claim.

As to the final factor, it does not appear that any other legal remedy is available to movant under the circumstances.

Consideration of all of the statutory factors leads the Court to grant the motion. Movant shall serve and file a claim limited to a cause of action for negligence in conformance with the requirements of Court of Claims Act § § 10,11 and 11-a within 45 days following the filing of the decision and order herein.

October 27, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 9, 2004;
  2. Affidavit of Christine Cassano sworn to May 25, 2004 with exhibits;
  3. Affidavit of Charles C. Rizzo, M.D. sworn to May 19, 2004;
  4. Affidavit of Carl Rosenbloom sworn to May 13, 2004;
  5. Affidavit of Samantha Cassano sworn to July 6, 2004;
  6. Affidavit of Patrick L. Seely, Jr., sworn to July 9, 2004 with exhibits;
  7. Affidavit of Dennis M. Acton sworn to July 20, 2004.