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
§ 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.
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.
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
, 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
, 55 NY2d 979, 981 (1982); Broncati v State of New York
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
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
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
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.