New York State Court of Claims

New York State Court of Claims

THURSTON v. STATE OF NEW YORK, #2004-018-325, Claim No. None, Motion No. M-68774


Synopsis


Late claim application granted.

Case Information

UID:
2004-018-325
Claimant(s):
BARBARA A. THURSTON The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
THURSTON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68774
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ALEXANDER & CATALANO, LLCBy: Peter J. Addonizio, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Winthrop Thurlow, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 25, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings a timely motion seeking permission to file a late claim pursuant to Court

of Claims Act § 10(6) (CPLR 214[5]). Defendant has submitted no opposition to the motion.

The proposed claim asserts that on June 18, 2003, Movant was walking on the sidewalk at the State University of New York Upstate Medical University (hereinafter University Hospital) when she slipped and fell on an allegedly dangerous condition that existed. Movant alleges that the State was negligent in maintaining the sidewalk, and that she suffered injuries as a result of her fall.

Court of Claims Act § 10(6) requires that the Court, in deciding an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor, whether the delay in filing the claim is excusable does not weigh in favor of granting Movant's application as she provides no excuse for failing to timely file and serve a claim.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the State had actual notice of the incident because hospital employees came to assist her after she fell and a formal incident report was made (Movant has attached a copy of the incident report as Exhibit A). The incident report notes that at the location of Movant's fall, the sidewalk was one to two inches higher than the adjoining walkway. The report also notes that Risk Management was notified. The Court finds that this was sufficient and prompt notice to the State, which provided an opportunity for an investigation, eliminating any potential prejudice to the State. These factors weigh in favor of granting Movant's application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Reading Movant's affidavit and supporting documents, she has met her minimal burden to establish the potential meritoriousness of her proposed claim.

The final factor is whether the Movant has any other available remedy. There does not appear to be any other remedy available to Movant.

Accordingly, upon balancing all of the factors in Court of Claims Act § 10(6), this Court GRANTS Movant's motion to permit the late filing and serving of the proposed claim. Movant should file and properly serve the proposed claim, properly verified, naming only the State of New York as Defendant, setting forth the sum demanded for damages, and removing the paragraph which begins, "PLEASE TAKE NOTICE..." in accordance with Court of Claims Act §§ 10, 11, and 11-a and all other applicable statutes and Court rules within 45 days of the date this Decision and Order is filed with the Clerk of the Court.


August 25, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion......................................................................................................1


Affidavit of Peter J. Addonizio, Esquire, in support, together with exhibits

attached thereto.............................................................................................2


Memorandum of Law in support of Movant's motion.............................................3


Defendant has submitted no opposition to the motion.