New York State Court of Claims

New York State Court of Claims

O'BRIEN v. THE STATE OF NEW YORK, #2004-028-560, Claim No. NONE, Motion No. M-67110


Claimant's motion for permission to file a late claim is...

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:
Defendant's attorney:
BY: Glenn C. KingAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 2, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's application pursuant to Court of Claims Act § 10(6) for permission to file a late Claim:

1) Notice of Motion and Supporting Affidavit of Matthew J. Kelly, Esq.
(Kelly Affidavit) and Affidavit of Joanne O'Brien (O'Brien Affidavit) with annexed Exhibits, filed July 16, 2003.

2) Affirmation in Opposition of Assistant Attorney General Glenn C. King
(King Affirmation) and Affidavit of Rick Geary (Geary Affidavit) filed August 20, 2003.

3) Reply Affidavit of Matthew J. Kelly, Esq. (Kelly Reply) and Reply Affidavit of Joanne O'Brien (O'Brien Reply) with annexed Exhibits, filed August 26, 2003.

Joanne O'Brien (Movant) seeks the Court's permission to late file a Claim against the Defendant alleging negligence flowing from a trip and fall accident on July 16, 2002 at the site of an unmarked depression in the sidewalk located between the Hall of Springs and the Saratoga Performing Arts Center (SPAC) Box Office located within the Saratoga Spa State Park grounds[1].

As a threshold issue, the Court has jurisdiction to review and determine this motion since it was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.

It is well-settled that the factors a 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) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop.

Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement System
, 55 NY2d 979, 981). The Defendant opposes this application on the basis that Movant fails to meet the necessary statutory factors and therefore, the motion should be denied.

Movant's proffered excuse for the delay in filing her claim was the need for ongoing treatment due to the nature of her injuries coupled with her belief that a letter from SPAC's insurance carrier, acknowledging her claim, was sufficient to proceed (O'Brien Affidavit, ¶ 3, 4). Movant has offered no proof to establish how her medical treatment prevented her from pursuing this claim. Distilled to its essence, Movant's belief, is nothing more than ignorance of the law and, as such, is not an acceptable excuse for the failure to timely commence this claim (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Accordingly, this factor weighs against Movant's application.

The factors of notice, opportunity to investigate and substantial prejudice will be analyzed together. The issue here is whether Movant's contacts with a Richard Geary shortly after the accident cause these elements to weigh in her favor. On its face, the answer would appear to be in the affirmative as Geary works for the Saratoga Performing Arts Center (SPAC) and SPAC is located within the Saratoga Spa State Park. However, the State asserts through Geary that SPAC is not a state entity and Geary is not an employee of New York State (see Geary Affidavit, Exhibit A, ¶ 5)[2]. Geary further states he notified SPAC's insurance carrier of the incident but made no report to the State of New York. Geary did state he had a responsibility to tell the State if he became "aware of a dangerous condition" (id. ¶ 6)[3]. On this record, the Court must conclude the notice to Geary is insufficient to provide notice to the Defendant. However, in light of Geary's statements that no repairs have been made to the at-issue sidewalk (id. ¶ 10) the Court finds that the State retains its opportunity to investigate this Claim and therefore will not suffer substantial prejudice in defending this Claim.

The most decisive component in determining a motion under Court of Claims Act §10 (6) is whether the proposed claim appears to be meritorious, 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). A movant must establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., supra at 11). While this standard clearly places a higher burden upon a party, it is still a low threshold (it does not require a movant to definitively establish the merit of the claim or overcome all legal objections thereto before the Court will permit the movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11, 12). While Defendant cogently sets forth its opposition that the proposed claim lacks merit because it fails to "specify in what manner the State's alleged culpability caused movant's injury" or is legally defective because "it fails to provide the State with a sufficient description of the place of the accident (King Affirmation ¶¶ 12, 13), the deficiencies noted by Defendant are remedied by a review of Movant's initial affidavit and in Movant's Reply papers. The description of the accident as being "on the sidewalk from the Hall of Springs to the box office" (Proposed Claim ¶ 1), as aided by the photographs and affidavits, satisfies the Act's "location" requirement. Unlike in Schneider v State of New York 234 AD2d 357, relied upon by the Defendant, Movant has provided two identifiable landmarks to help locate the area in which she fell (see also Connors v State of New York, Ct Cl, Patti, J., Claim No. 106810, UID#2004-013-040 ["on the gymnasium floor of the gymnasium located on the campus of SUNY Brockport in Tuttle North Athletic Complex" sufficient]). Similarly, in light of the conflicting statements of Movant and Geary as to the site's condition and need for repairs the Court can not conclude the proposed Claim is patently groundless or frivolous but rather appears meritorious. As such, the Court rejects Defendant's assertions that Movant has failed to allege a trip and fall negligence cause of action or that the requirements of Court of Claims Act § 11 are unsatisfied. The posture of this case - a late file application instead of a motion to dismiss - permits the Court to exercise its discretion and ameliorate the pleading defects in the proposed claim. By doing so the Court conserves judicial resources and avoids a subsequent application for permission to late file a claim (cf. Beeman v Olympic Regional Development Authority and State of New York, Ct Cl, Bell, J., Claim No. None UID #2000-007-040). This factor therefore weighs in favor of the application.

Turning to the final factor, the record as developed suggests that Movant only has a cause of action against the State of New York and as such, this factor also weighs in favor of granting the motion.

Based on the foregoing, the Court concludes that the statutory factors on balance favor Movant and therefore exercises its discretion and grants Movant's motion for permission to file a late claim. Movant shall serve and file a claim consistent with this decision and Movant's allegations that the unmarked pitch in the sidewalk caused Movant's fall (see Kelly Reply ¶ 5). The Court further directs Movant to file and serve her claim, as directed, within thirty (30) days after this decision and order is filed and in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a.

September 2, 2004
Albany, New York

Judge of the Court of Claims

[1] Movant's counsel has taken the bare bones approach to pleading as evidenced by the proposed "notice of claim" (the proposed pleading should properly be denominated a claim [see Court of Claims Act § 11) and most of the alleged facts have been culled from the affidavits and exhibits submitted.
[2] The contractual relationship between SPAC and the State of New York has been explored in the context of accidents happening within SPAC grounds (see Burgess v State of New York, Ct Cl, Benza, J. Claim No. 95080, [unreported decision] October 13, 1998).
[3] The State has not provided an affidavit that it was unaware of the at-issue accident but rather relies on Geary's affidavit that he did not advise the State (see Cole v State of New York, 64 AD2d 1023, 1024 [the State cannot use its own silence as a shield against an allegation that it has notice of essential facts constituting a claim]).