The court read and considered the following papers on claimant's motion for
permission to file a late claim: Notice of Motion, Affirmation and Exhibits;
Affirmation in Opposition and Exhibits.
Claimant seeks permission to file a claim, pursuant to Court of Claims Act
§10(6), arising out of a February 19, 2003 slip and fall incident at York
College in Queens in which she allegedly suffered injuries to her back, right
leg and knee. Defendant opposes the application on the grounds that claimant's
delay in not timely proceeding in this court (i.e., within 90 days of accrual;
Court of Claims Act §10)) was not excusable and that the proposed claim
does not appear to be meritorious. Defendant also alleges that the description
of claimant's alleged injuries in the proposed claim is so "vague" so as to fall
short of the requirements of Court of Claims Act §11(b) (a "claim shall
state . . . the items of damage or injuries claimed to have been sustained") and
Uniform Rules for the Court of Claims §206.6 ("[t]here shall be included in
each claim, or attached thereto, a schedule showing in detail each item of
damage claimed and the amount of such item").
Court of Claims Act §10(6) grants the court the discretion to allow the
late filing of a claim, upon consideration of all relevant factors, including
whether claimant's delay was excusable, whether defendant had notice of the
facts and the opportunity to investigate within the statutory period (90 days),
whether defendant would suffer substantial prejudice should late filing be
allowed, whether the proposed claim appears meritorious and whether claimant has
an alternate remedy.
Defendant's failure to address four of the six statutory factors warrants the
inference that they weigh in favor of granting the application (Cole v State
of New York
, 64 AD2d 1023). Moreover, the papers indicate that a CUNY
safety officer responded to the scene of claimant's fall and filed a report and
that claimant served a notice of claim
within 90 days of the incident, thus providing timely notice and preventing any
claim of prejudice arising from late filing.
Defendant is correct that counsel's mistake in the proper way to proceed (see
fn. 1) cannot be deemed "excusable" within the meaning of the State.
With respect to the apparent merit of the proposed claim, claimant's burden is
to show that it is not patently groundless, frivolous or legally defective and
that there is reasonable cause to believe that a valid cause of action exists
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
Despite the various factual and legal arguments advanced by defendant with
respect to whether a dangerous condition existed, whether defendant had notice
of such condition and whether claimant's own negligence was the cause of her
fall, the court finds that the submitted papers satisfy claimant's burden as to
apparent merit at this stage of the litigation.
Paragraph 4 of the proposed claim alleges that claimant "sustained severe and
serious permanent personal injuries, including but not limited to injuries to
her back, right leg and right knee. Damages are claimed . . . for conscious
pain and suffering, physical and/or personal injuries and medical expenses" and
paragraph 5 seeks relief in the amount of $1 million for such injuries. The
court finds that this language complies with the requirements of the Court of
Claims Act and the Uniform Rules for the Court of Claims, subject, of course, to
further elaboration in a bill of particulars.
On balance, the court finds that the motion should be, and hereby is, granted.
Claimant may serve and file her claim, pursuant to the relevant provisions of
the Court of Claims Act and the Uniform Rules, within 45 days of the filing date