New York State Court of Claims

New York State Court of Claims

CAROLINA v. THE STATE OF NEW YORK, #2004-028-581, Claim No. 108716, Motion Nos. M-68696, M-68773, M-68511


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):
M-68696, M-68773, M-68511
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Stephen J. MaherAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has read the following papers on Claimant's applications:

- Motion for Permission to Late File a Claim

1) Notice of Motion and Supporting Affidavit of Darryl Carolina filed May 12, 2004; with attached proposed Claim;

2) Affirmation in Opposition of Assistant Attorney General Stephen J. Maher filed June 15, 2004 (Maher Affirmation) with annexed Exhibits A-B

3) Reply "Affirmation" of Darryl Carolina filed July 7, 2004 (Carolina "Affirmation");

4) Reply "Affirmation" of Darryl Carolina filed July 27, 2004

- Motion to Reargue and Assignment of Counsel

1) Affidavit in Support of Darryl Carolina filed June 15, 2004

2) Opposition Papers: None[1]

- Motion for Assignment of Counsel

1) Affidavit in Support of Darryl Carolina filed July 6, 2004

2) Opposition Papers: None[2]

Filed Papers: Verified Claim filed January 2, 2004; Order filed January 23, 2004.

By Order filed January 23, 2004 the Court granted Claimant's application pursuant to CPLR §1101(f) and reduced the filing fee to $30.00 and made same an encumbrance upon Claimant's inmate account (Carolina v State of New York, Ct Cl, Sise, J., Claim No. 108716, January 23, 2004). In that Claim, Claimant alleges he slipped and fell while exiting the shower at Coxsackie Correctional Facility (Coxsackie CF) and was injured. Thereafter, Claimant filed three separate motions by which he seeks 1) permission to late file a claim arising from separate slip and fall accidents on July 27, 2003 and November 27, 2003 at Coxsackie CF while exiting the shower (M-68511); 2) assignment of counsel and to reargue the prior Order (M-68696) and 3) for assignment of counsel (M-68773). Defendant has opposed only the application for permission to late file a claim as it relates to the alleged July 27, 2003 slip and fall (Maher Affirmation ¶ 3).

Initially, a review of the previously filed Claim (Claim No. 108716) reveals that it alleges negligence for a slip and fall accident by Claimant on November 27, 2003 at Coxsackie CF while exiting the shower. Defendant's statement that a timely filed claim already exists and that as such Claimant does not need § 10(6) relief for that accident is correct. Therefore, that branch of Motion M-68511 which seeks permission to late file a claim for the November 27, 2003 slip and fall is denied as moot. The Court now turns to the §10(6) application regarding the July 27, 2003 slip and fall.

As a threshold matter, Court of Claims Act §10(6) grants the Court the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR, as in the instant application, has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). They are whether (1) the delay in filing the claim was excusable; (2) the defendant had notice of the essential facts constituting the claim; (3) the defendant had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the defendant was substantially prejudiced; and (6) the claimant has any other available remedy.

Claimant offers the common litany of reasons for not timely filing the claim - his status as a lay person, incarceration, no legal counsel, medical condition and confinement and no access to legal resources (Carolina Reply ¶ 4). Each of which have been held to not constitute a reasonable excuse (see Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Hall v State of New York, 85 AD2d 835 [inmate]; Cabral v State of New York, 149 AD2d 453 [medical excuses must be accompanied by a physician's affidavit]). Moreover, as noted by Defendant, Claimant was able to timely preserve his rights to, and then commence, an action arising from the November 27, 2003 accident (see Maher Affirmation, Exhibit B). Accordingly, this factor therefore weighs against Claimant's application.

Turning to the factors of notice, opportunity to investigate or prejudice, factors which are generally viewed together, the Court finds these too weigh against Claimant's application. Although Claimant asserts the State had knowledge of the essential facts (Notice of Motion ¶ 3), in the proposed Claim he contradicts that statement when he states he "filed the first Grievance on the 27 of November" (Proposed Claim, unnumbered ¶ 6 [emphasis added]). Moreover, there is no indication from Claimant that any contemporaneous documents - i.e. an injury/incident report - were made by Claimant or that Claimant even verbally reported the alleged July 27, 2003 slip and fall. Given the allegations made and the setting in which they are alleged to have taken place, the Court would expect such records would be available. As such, the Court finds that these factors also weigh against Claimant's application.

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). Claimant 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). Here, there are insufficient facts alleged from which the Court could ascertain whether the alleged July 27, 2003 claim has the appearance of merit. Claimant has provided a single, and very conclusory set of facts, which is not clearly attributed to either occurrence alleged. Rather, the facts alleged mirror, down to the precise time of the occurrence, the facts in the timely filed claim concerning the alleged slip and fall on November 27, 2003. Accordingly the Court finds this factor weighs against Claimant's application.

Turning to the factor of another available remedy, Claimant asserts he has none and Defendant suggests the pending claim is another available remedy. To the extent Claimant were able to establish independent injuries from the alleged July 27, 2003 accident, Claim No. 108716 concerning the November 27, 2003 accident would not be an available other remedy. The Court finds this factor to weigh in favor of the Claimant.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh against granting Claimant's motion for permission to file a late claim, and same is hereby DENIED.

Taking up Claimant's other applications, his requests for appointment of counsel are denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
93 NY2d 1000; Pittman v State of New York, Claim No. 101942, Motion No. M-61372, UID#2000-019-511, Lebous, J., April, 18, 2000). This case is a negligence claim involving a slip and fall and, as such, fails to rise to the level warranting assignment of counsel. Moreover, such claims are routinely handled by counsel on a contingency fee basis.

Lastly, the Court denies Claimant's motion pursuant to CPLR 2221 to reargue the Court's January 23, 2004 Order which granted Claimant's CPLR §1101(f) application for a reduction in this Court's filing fee. Claimant's motion to reargue, filed June 15, 2004, is untimely (see CPLR 2221 [d] [3]; Pearson v Goord, 290 AD2d 910). Assuming arguendo the motion was timely made, it nevertheless would have been denied. A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied the controlling principle of law (Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558). Its purpose is not to serve as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Pahl Equip. Corp. v Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651). This motion contains no new proof with regard to Claimant's ability to pay the already reduced filing fee and offers no basis for the Court to exercise its discretion.

Based upon the foregoing, Claimant's motions are hereby denied in their entirety.

December 21, 2004
Albany, New York

Judge of the Court of Claims

[1]The Court received a letter dated July 16, 2004 from Paul Cagino, Assistant Attorney General.
[2]The Court received a letter dated August 2, 2004 from Assistant Attorney General Eileen E. Bryant.