New York State Court of Claims

New York State Court of Claims

WAGONER v. THE STATE OF NEW YORK, #2004-030-549, Claim No. 108827, Motion No. M-68298


Synopsis



Case Information

UID:
2004-030-549
Claimant(s):
KATHERINE WAGONER
Claimant short name:
WAGONER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108827
Motion number(s):
M-68298
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
GARY E. DIVIS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JUDITH C. McCARTHY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 13, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 8 were read on Claimant's motion for permission to


serve and file a late claim pursuant to Court of Claims Act § 10(6):

1- 4 Notice of Motion, Affirmation by Gary E. Divis Attorney for Claimant, Affidavit by Katherine Wagoner Claimant, Memorandum of Law and Attached Exhibits

5 Affirmation in Opposition to Motion by Judith C. McCarthy, Assistant Attorney General of the State of New York

6 Reply Affirmation by Gary E. Divis Attorney for the Claimant

7,8 Filed Papers: Claim No. 108827, Verified Answer Claim No. 108827

After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

Preliminarily, Claim No. 108827 was served by regular mail by Claimant, acting pro se, and thus failed to comply with the jurisdictional requirements of the Court of Claims Act. Prior correspondence between the Court and counsel suggested that counsel for Claimant withdraw the defective claim at the same time that the motion for late claim relief was going to be brought, in order to avoid duplication. Since the Defendant did not make a motion to dismiss that claim and since Claimant's counsel failed to withdraw that claim at the time that the motion was filed, the Court will nonetheless dismiss, sua sponte, Claim No. 108827 and will proceed only with the aspects of Motion No. M-68298 seeking late claim relief. The Court will treat the Claimant's filed claim as the proposed claim. See Exhibit 7.

This is the motion of Katherine Wagoner for permission to file a late claim pursuant to

§ 10(6) of the Court of Claims Act. The proposed claim alleges that on June 21, 2003 the Claimant suffered injuries when she slipped and fell in a puddle of water in a laundry room while she was incarcerated at Bedford Hills Correctional Facility. Claimant alleges that prior to her incident that NYSDOCS employees had issued work orders to repair the leaky machine in the laundry room [Proposed Claim, Paragraph 3]. The Claim alleges that "NYSDOCS failed to reasonably provide for claimant's safety; the scene was inherently dangerous; NYSDOCS took no steps to minimize the danger to prevent injury to claimant; . . . NYSDOCS employees having notice of the leaking clothes washing machine failed to timely repair the leak; NYSDOCS failed to provide claimant with access to a substitute laundry room; and NYSDOCS failed to assign porters to mop up the soapy water leaking from the clothes washing machine." [Proposed Claim, Paragraph 4].

Claimant indicates that the delay in filing the claim is excusable because of her ignorance of the requirement that the notice of intent be served by certified mail. Also, the Claimant maintains that the delay was caused by her counsel's attempt to investigate the case, by the need for counsel to communicate with her by mail, and because of the sickness of the Bedford C.F. FOIL officer.

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in § 10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . " § 10(6) Court of Claims Act.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exits. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. NONE, Motion No. M-64481 (Midey, J. filed February 28, 2002).

The Claimant's mere incarceration and the asserted difficulty in conferring with her attorney do not constitute a reasonable excuse. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). Similarly, her claim of lack of knowledge of the law does not constitute an acceptable excuse. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1990).

The absence of an excuse, however, is but one of the factors to be considered and does not necessarily preclude relief. Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant's motion. Both NYSDOCS and the Attorney General's Office learned of the incident within a reasonable time period to constitute notice of this claim. Bedford's security and medical personnel learned of the incident on June 21, 2003 and Defendant's lawyers learned of the claim on August 18, 2003. The NYSDOCS's security officers completed their investigation of the incident underlying the claim on June 21, 2003. Since the underlying records and reports of the incident still exist, the delay does not seem to prejudice the Defendant. Accordingly, these factors weigh in favor of granting the motion.

As noted, Claimant need not establish her claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has made the requisite showing of merit in order to permit late filing of her claim.

With respect to the safety of persons on its property, including prisons, the State has a duty to "act as a reasonable man in maintaining [that] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk." Miller v State of New York, 62 NY2d 506, 513, 478 NYS2d 829, 833 (1984); Preston v State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983). To establish that this duty was breached in the instant case, Claimant must prove "that a dangerous condition existed relative to the accumulation of water on the [laundry] floor and that the State had either created the alleged dangerous condition or had actual or constructive notice of such condition and failed to remedy it." Barton v State of New York, Claim No. 92008, slip op. at 3 (Ct Cl Dec. 17, 1997, Bell, J.).

The claim alleges that the Defendant had notice of the dangerous condition in the laundry room since prior to the incident NYSDOCS employees had issued work orders to repair the leaking machine in the laundry room where Claimant fell. The Defendant's opposing papers claim that records attached to Claimant's moving papers indicate that Bedford Hills took precautionary measures to prevent a dangerous condition, by posting wet floor signs and having inmates mop the floors at regular intervals.[See Memorandum from Sgt. Wilson to Lt. Hodges, annexed to Claimant's Motion to File a Late Claim, p. 16]

What has been raised by the State's submission is a factual dispute, which - given the limited purpose of this motion - does not alone conclude the matter. Indeed, based upon the facts alleged, the claim is not patently groundless, frivolous or legally defective and a consideration of the entire record indicated that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., supra.

Having considered the relevant statutory factors, the Court finds that the balance of factors weigh in Claimant's favor. Therefore, the Claimant's motion for permission to file a late claim is hereby granted. Claimant is directed to file and serve her claim in the form annexed to her present application, pursuant to Court of Claims Act §§ 10,11 and 11-a within forty- five (45) days after this order is filed.

July 13, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978) ["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted)."]