New York State Court of Claims

New York State Court of Claims

YOUNG-MAXWELL v. THE STATE OF NEW YORK, #2004-028-564, Claim No. NONE, Motion No. M-68116


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

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:
SPIEGEL & BARBATO, LLPBY: Charles H. Spiegel, Esq.
Defendant's attorney:
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 27, 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 Affirmation of Charles H. Spiegel, Esq.
(Spiegel Affirmation) with annexed Exhibits A-H[1] filed March 1, 2004.

2) Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein
(Marmelstein Affirmation) and Affidavit of James Whitaker (Whitaker Affidavit) filed May 18, 2004.

Martha Young-Maxwell (Movant) seeks the Court's permission to late file a Claim against the Defendant following a trip and fall accident on April 27, 2003 on an uneven and cracked sidewalk/walkway within Mohawk Correctional Facility.

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 Claimant fails to meet the necessary statutory factors and therefore, the motion should be denied.

The instant application was necessitated by Movant's failure to serve the Attorney General's office with the Claim that was filed with the Clerk of the Court on July 31, 2003. Although Claimant asserts the "copy intended to be served on the Attorney General contemporaneously with the filing was never received by the Attorney General" (Spiegel Affirmation ¶ 7) no proof of mailing - such as a certified mailing receipt with the article number - or an affidavit of service has been provided on this application to support same. As such, movant has failed to establish a reasonable excuse for the delay in serving the Claim (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792; Donovan v New York State Teachers' Retirement System, 87 AD2d 664). Thus, this factor weighs against granting Movant's motion.

The factors of notice, opportunity to investigate and substantial prejudice will be analyzed together. The issue here is whether Movant's securing first aid treatment at the Correctional Facility and the completion of a "Visitor Accident/Incident Report" by a state employee (see Spiegel Affirmation ¶ 5 and Exhibit B; see also Marmelstein Affirmation footnote 1) on the date of the accident cause these elements to weigh in her favor[2]. Certain types of occurrences will automatically be investigated for other reasons, such as security concerns, and certain types of occurrences so typically lead to a lawsuit that they are invariably reported to higher-ups, which may serve to put the State on notice of a potential lawsuit (Espinal v State of New York, 159 Misc 2d 1051 [inmate assault inflicting serious injuries]; Carmen v State of New York, 49 AD2d 965 [workman seriously injured in fall at the Empire State Plaza]). This Court is not prepared to extend that rationale to a trip and fall, where, as here, the accident report relied upon is nearly devoid of detail and fails to suggest a serious injury (see Spiegel Affirmation, Exhibit B [bandaid with antibiotic ointment applied]) occurred or the mechanics of the accident (see Allen v State of New York , Ct Cl, Patti, J., Claim No. 103513, UID #2001-013-032, December 31, 2001). The Court is equally unprepared to accept Defendant's theory that the winter of 2003-2004 altered the accident site to preclude a meaningful investigation (see Whitaker Affidavit). Accordingly, the Court finds that while the Defendant did not have notice of the accident, it retains the opportunity to investigate same and will not suffer substantial prejudice if permission to late file is granted.

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).

Defendant cogently sets forth its opposition that the proposed claim lacks merit because it contains bare conclusory allegations of negligence (Marmelstein Affirmation ¶ 18) and fails to satisfy the requirements of Court of Claims Act § 11 as it does not provide an adequate description of the place where the Claim arose or identify either the particular act or omission upon which the State's liability is premised (Marmelstein Affirmation ¶¶ 15 and 19). While 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 so that the Court conserves judicial resources and avoids a subsequent application for permission to late file a claim (cf Beeman v The Olympic Regional Development Authority and The State of New York, Ct Cl, Bell, J., Claim No. None, UID #2000-007-040) both the proposed claim and the supporting papers are, in this Court's view, so bare bones that any attempt by the Court to remedy the defects would be mere conjecture on the Court's part (see Anderson v CUNY, Ct Cl, Waldon, J., Claim No. None, July 18, 2003 [unpublished decision and order] affd 8 AD3d 413). While Movant argues that there is no dispute as to how claimant was injured or that an accident happened (Spiegel Affirmation ¶ 20) the mere happening of an accident does not render a defendant liable for negligence (see Tomassi v Town of Union, 46 NY2d 91). Moreover, inasmuch as the proposed claim is a trip and fall, in order to establish liability, Claimant will have to prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Dapp v Larson, 240 AD2d 918). It is well established that in order "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it [citations omitted]" (Gordon v American Museum of Natural History, 67 NY2d 836, 837) and there is nothing in this record to suggest notice of the alleged defect or any opportunity to correct same (compare Jackson v State of New York, Ct Cl, Lebous, J., Claim No. NONE, UID #2002-019-582, November 8, 2002) let alone an allegation of same. Accordingly, this factor weighs against Movant's application.

Turning to the final factor, the Defendant does not dispute 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 forgoing, the Court concludes that the statutory factors on balance do not favor Movant and therefore declines to exercise its discretion and denies Movant's motion for permission to file a late claim.

October 27, 2004
Albany, New York

Judge of the Court of Claims

[1] The proposed Claim is annexed as Exhibit A and the affidavit of the Movant, Martha Young-Maxwell is annexed as Exhibit H.

[2] Claimant's additional argument that the Attorney General's office was aware of the Claim by virtue of receiving a copy of the Court's acknowledgment letter (see Exhibit G) is unavailing.