New York State Court of Claims

New York State Court of Claims

LaBAFF v. THE STATE OF NEW YORK, #2004-028-583, Claim No. NONE, Motion No. M-68191


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

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:
LEKKI, HILL, FISCHER & DUPREY, P.C.BY: Mathew P. Duprey, Esq.
Defendant's attorney:
BY: Mary R. HumphreySenior Attorney
Third-party defendant's attorney:

Signature date:
December 21, 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 Affidavits of Mathew P. Duprey, Esq.
(Duprey Affidavit) and Darlene Sue LaBaff (LaBaff Affidavit) with annexed Exhibits A-C , filed March 18, 2004.

  1. Affirmation in Opposition of Senior Attorney Mary R. Humphrey
(Humphrey Affirmation) with annexed Exhibits A-B, filed June 2, 2004.

3) Reply Affirmation of Mathew P. Duprey, Esq. (Duprey Reply I), filed June 2, 2004.

  1. Reply Affirmation of Mathew P. Duprey, Esq. (Duprey Reply II), filed August 9, 2004.
Darlene Sue LaBaff (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 5, 2003 on a raised edge of a cement walkway at the Robert Moses State Park at Barnhart Beach. [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 her belief that she had complied with the notice requirements. Movant asserts she relied upon information from her contact with one "Jim Smear" from Defendant's Office of Parks, Recreation and Historic Preservation and a "Patron Claims" package provided to her by Defendant's agency (LaBaff Affidavit ¶ ¶3-6; Duprey Reply II ¶¶ 6-8). Defendant has characterized this explanation as unfamiliarity with the law, and while Movant contests that assessment, the Court agrees. The Patron Claims package on its face unambiguously states the limits of that process as to maximum financial exposure and, in boldface type, a statement that pain and suffering are not compensable (see Duprey Affidavit, Exhibit A). 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. Notwithstanding the Court's analysis of the first factor, Movant's contacts with Jim Smear - unrefuted by Defendant - shortly after the accident, the completion of the accident report (see Duprey Affidavit Exhibit B) and Movant's assertion that Defendant placed "red painted markings" on the ground at the site of her accident (Duprey Reply II ¶ 13) cause these elements to weigh in her favor. The Court is also persuaded that Defendant was on notice of this potential claim, and assessed it as such, by virtue of its acts in providing Movant with the Patron Claims package.

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, and contrary to Defendant's demands for "specific proof" (Humphrey Affirmation ¶ 12) 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 and strenuously sets forth its opposition that the proposed claim lacks merit, the arguments raised - such as the Court should find the defect as trivial - are fact determinations that are best left for resolution upon development of a fuller record. Moreover, the description of the accident, as aided by the exhibits and affidavits, satisfies the Act's "location" requirement (see e.g. 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]). The Court also 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. As already noted by the Court, the proposed Claim (Duprey Affidavit, Exhibit C), is unlikely to appear in any form book as a model pleading; however, 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 considering 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 for her pain and suffering 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, as well as with Movant's allegations as to the condition of the cement walkway which caused Movant's fall (see Duprey Reply II ¶ 18). 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.

December 21, 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 claim. As such, the Court has culled many of the alleged facts from the affidavits and exhibits submitted.