7. Affidavit of Carol B. Melson, sworn to July 28, 2003. This is Claimant Carol
B. Melson's motion for permission to file a late claim, pursuant to
§ 10(6) of the Court of Claims Act (the "CCA"). Ms. Melson alleges in
her proposed claim that, on February 24, 2003, she slipped and fell on an icy
patch of sidewalk just outside of South Wing Tower, on the Buffalo State Campus,
a property owned and operated by an agent of Defendant. Ms. Melson asserts that
the accident occurred at about 10:40 a.m. on that day and that the weather, at
the time, was clear. As a result of this fall, Ms. Melson injured her left
knee. She alleges that Defendant was negligent in failing to properly clear and
salt the walkway.
Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an
opportunity to investigate; (5) whether Defendant would be substantially
prejudiced; and (6) whether the claim appears to be meritorious. This list is
not exhaustive and the presence or absence of any one factor is not dispositive.
Rather, the Court in its discretion balances these factors in making its
determination (Bay Terrace Coop. Section IV v New York State Employees'
Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).
Defendant opposes Claimant's motion only on the factors of excuse for the delay
and merit, appropriately conceding that the other factors weigh in Claimant's
This motion was filed approximately three weeks after the initial 90 day period
for timely filing a claim expired. As an excuse for his delay, Claimant's
counsel candidly admits that delay was the result of a law office failure to
properly calendar the deadline. Of course, this is not recognized as an
acceptable excuse (Nyberg v State of New York, 154 Misc 2d 199; Sessa
v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334,
affd 47 NY2d 976). This factor, therefore, weighs in Defendant's favor.
The absence of an excuse, however, is only one of the factors considered by the
Court in reviewing an application pursuant to § 10(6), and does not
necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New
York State Employees' Retirement System Policemen's & Firemen's Retirement
System, 55 NY2d 979, supra).
This leaves for analysis only the final factor - the appearance of merit. In
this regard, I note that Defendant's motion papers in opposition were very well
done and pointed out several deficiencies in Claimant's original submissions.
Defendant also provided affidavits from employees of the State who allege that
the area in which Claimant fell was properly cleared and salted on the day in
question. However, Claimant's subsequent submissions contradict Defendant's
version of the events of that morning and allege that Defendant failed to salt
the area in question prior to her accident, and even that Defendant's agent, Mr.
Davis, commented after finding Claimant injured, that he was surprised that the
area had not been salted.
With regard to merit, generally, a proposed claim meets the appearance of merit
standard if it passes a two-fold test. It must not be patently groundless,
frivolous or legally defective, and upon consideration of the entire record,
there must be reasonable cause to believe a valid cause of action exists
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While
the aforementioned standard on a late filing application clearly places a
heavier burden on a party who fails to comply with the statutory requirements,
it does not require a claimant to overcome all objections, nor does it suggest
that the Court should engage in the kind of fact-finding that would ultimately
be necessary to adjudicate the actual merits of the case (Matter of Santana v
New York State Thruway Auth., 92 Misc 2d 1, supra, at 11-12 ). For
this reason, though a "close call" I find that Claimant has demonstrated at
least the appearance of merit. Of course Claimant's burden will be greater at
trial, and this matter may be the proper subject of a summary judgment motion
Upon reviewing and balancing all of the factors enumerated in CCA § 10(6),
the Court finds that they weigh in favor of granting Claimant's motion for
permission to file a late claim.
Based upon the foregoing it is hereby:
ORDERED, that Claimant's motion for permission to file a late claim in
this matter is granted. Claimant is directed to file and serve a properly
verified claim identical to the proposed claim submitted in support of this
motion, and to do so in conformance with the requirements of CCA §§
10, 11, and 11-a within sixty (60) days after this order is filed.