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
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
Exhibit A, ¶
. 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.
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
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.