Claimant moves for permission to file a late claim pursuant to Court of Claims
Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State")
opposes the motion.
Claimant, a student at Binghamton University, was working out at the university
gym on campus known as "Fitspace" on October 6, 2003 when a forty-five pound
weight came loose from a T-Bar row weight machine, fell and broke the big toe on
his right foot.
As a threshold issue, the court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ).
The factors that the court must consider in determining a properly framed CCA
10 (6) motion are whether:
1. the delay in filing the claim was excusable;
2. the State had notice of the essential facts constituting the claim;
3. the State had an opportunity to investigate the circumstances
underlying the claim;
4. the claim appears to be meritorious;
5. 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
6. claimant has any other available remedy.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), since it would be futile to permit a meritless claim to proceed.
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In
order to establish a meritorious claim, claimant must establish 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.
(Id. at 11). "While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto...." (Id. at 11-12).
Claimant alleges that this particular weight machine was the subject of prior
complaints and that the State had actually ordered a replacement machine prior
to the date of his accident. (Claimant's Affidavit, ¶ 8). The State
objects to such "unsupported conclusory assertions" (Affirmation of Geoffrey B.
Rossi, AAG, ¶ 12), but has not come forward in response with an affidavit
from anyone with personal knowledge denying the existence of prior complaints
regarding this machine or the decision to replace said machine prior to this
accident. (Calzada v State of New York, 121 AD2d 988, 989). In this
court's view, claimant's allegations go directly to his ultimate burden at trial
to establish the State's actual and/or constructive notice of a defective
condition. It is well-settled that "[f]acts stated in a motion for leave to
file a late claim against the State are deemed true for purpose of motion, when
not denied or contradicted in opposing affidavits [citations omitted]."
(Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334,
affd 47 NY2d 976). In view of this principle, the court finds that
claimant's allegations satisfy his minimal burden of establishing that the
proposed claim has the appearance of merit.
With respect to the remaining factors, claimant alleges that his delay arose
out of his fear of "los[ing] my gym privileges and favor with other students" as
well as diminishing his chances of obtaining a part-time job at the gym and
joining a fitness-based fraternity. (Claimant's Affidavit, ¶ ¶ 11
& 12). The court finds that claimant has failed to establish that his delay
in filing a claim was excusable.
Claimant alleges that the State received notice of the essential facts
constituting the claim and thus an opportunity to investigate this claim from
three different sources. First, claimant alleges that the State obtained notice
when his attorney sent a letter of representation to Binghamton University dated
January 30, 2004 which was received within a month after the expiration of the
statutory ninety day period. The court finds that this letter of representation
cannot serve as notice because the letter does not provide the nature or
location of this accident.
In any event, this
letter was received by Binghamton University after the expiration of the
ninety-day statutory time period.
Next, claimant alleges that the State received notice of the essential facts
because a student employee of the gym rendered assistance to him at the scene
and presumably filed a report of the incident. (Claimant's Affidavit, ¶ 4;
Affidavit of Yana Rubin, Esq., ¶ 14). While it is true that incident
reports prepared at an agency site can suffice as notice, there must be an
indication that notice of the essential facts reached the supervisory level in
order to allow the start of an investigation (Witko v State of New York,
212 AD2d 889) or that the injury was so severe as to enable the court to presume
that notice by someone with such authority was received. Here, there is no
indication that the student gym employee notified anyone possessing a
supervisory capacity of this accident or that he actually filed a report.
Further, the court cannot presume that a broken toe mandated the filing of any
Finally, claimant alleges the State obtained notice of the essential facts of
this incident because this particular weight machine was scheduled to be
replaced due to complaints received before this accident. The court notes that
while claimant's allegations of prior complaints were relevant with respect to
the factor of merit, such prior complaints are not relevant as to whether the
State had notice of the essential facts of this accident. More specifically,
the concept of notice in a late filing application relates to the State's notice
of an accident after it has actually occurred, thereby permitting the
State to investigate the claim if it so chooses. (Matter of Crawford v City
Univ. of N. Y., 131 Misc 2d 1013, 1015). Otherwise, in late filing motions,
the State would be deemed to have notice of every claim arising from a
dangerous condition it created or knew or should have known existed, even before
an accident occurs. As such, the court finds that claimant has failed to
establish the State had notice of the essential facts of this accident and an
opportunity to investigate.
With respect to the factor of prejudice, the State alleges that the replacement
of the weight machine since the accident creates prejudice to the State.
Nevertheless, the State has not demonstrated to the satisfaction of this court
that the machine is permanently unavailable or that it cannot now prepare and
proceed to trial due to the delay nor does it argue that the delay in filing has
generated an unfair advantage to the claimant. Consequently, the court finds
this factor favors claimant's request for permission to late file a claim.
The final factor is whether or not claimant has an available alternate remedy.
Neither party addresses this factor. Nevertheless, the court finds that
claimant may have a remedy against the manufacturer of the weight machine. As
such, the court finds this factor weighs against claimant.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the court finds that two of the six factors, including the
all-important factor of merit, weigh in favor of granting claimant's motion for
permission to file a late claim.
Accordingly, in view of the foregoing, IT IS ORDERED that claimant's motion for
permission to late file, Motion No. M-69192, is GRANTED. Claimant shall file a
claim with the Clerk of the Court and serve a copy of the claim upon the
attorney general within sixty (60) days from the date of filing of this Decision
and Order with the Clerk of this Court. The service and filing of the claim
shall be in conformity with all applicable statutes and rules of the court with
particular reference to CCA 10, 11 and 11-a.