New York State Court of Claims

New York State Court of Claims

SUKEDO v. THE STATE OF NEW YORK, #2004-032-016, , Motion No. M-67561


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:
Vishny Sukdeo, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that on March 21, 2003, at Adirondack Correctional Facility, he was seriously injured when, as he was sleeping in the medical unit, his foot touched an exposed radiator. The State's liability for this injury is premised on its alleged negligence in "having the beds in the medical unit too close to the radiator" (proposed claim, ¶2). The injuries he suffered from this event, he states, were exacerbated by the fact that he is a diabetic.
This motion was brought less than a year after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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 to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Claimant states that his delay in commencing his claim is excusable because he "was transferred from the facility where the injuries occurred which required me to file an inmate grievance and obtain medical records" (Sukdeo affidavit, ¶4). Incarceration in and of itself is not a disability that excuses compliance with the statutory requirements of the Court of Claims Act (Plate v State of New York, 92 Misc 2d 1033, 1037-1038 [1978]), and there was no need for claimant to obtain his medical records before filing a claim or serving a notice of intention, as such documentation can be assembled during the discovery phase. On the other hand, there is some authority for excusing a delay that is caused by an inmate's effort to resolve his dispute through the institutional grievance procedures (Pena v State of New York, UID No. 2002-032-092, Motion No. M-66743, September 18, 2003, Hard, J.; Younis v State of New York, UID No. 2001-013-012, Motion No. M-63393, August 10, 2001, Patti, J.).
Claimant asserts that the State had notice of the essential facts constituting the claim because it occurred in the facility's medical ward and medical personnel were immediately aware of the incident. In addition, the State was given notice of his intention to seek recovery for the injury as a result of his institutional grievance. As a result, defendant's opportunity to investigate the circumstances underlying the claim was not significantly impeded by the delay, and permitting the filing of an untimely claim would not result in substantial prejudice to the State.
It appears that claimant does not have an available remedy against any party other than the State.
Claimant has succeeded in establishing that the proposed claim 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 [Ct Cl 1977]). The Court does not accept defense counsel's assertion that the allegation that the hospital bed was too close to the radiator is "highly dubious, thus of questionable merit" (King affirmation, ¶6). This is a factual issue for proof at trial.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting claimant's motion for permission to file a late claim. Claimant is therefore directed to file and serve a claim identical to the proposed claim submitted in support of this motion; and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

March 19, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Vishny Sukdeo, pro se, with annexed proposed claim

2. Affirmation in Opposition of Glenn C. King, Esq., AAG

Filed papers: None