New York State Court of Claims

New York State Court of Claims

CALDWELL v. THE STATE OF NEW YORK, #2004-032-094, Claim No. N/A, Motion No. M-68828


Permission is given for late-filing of a claim that alleges that safety precautions, that were known to be needed, were not taken to protect a disabled individual who was participating in an adaptive ski program.

Case Information

SUSANNAH CALDWELL, a person under disability, JUDITH BURG and STEVEN CALDWELL, both individually As parents and as co-guardians for SUSANNAH CALDWELL
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:
James W. Badie, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The proposed claim alleges that on December 28, 2003, movants' daughter, who has cerebral palsy, was participating in the Whiteface Mountain Adaptive Ski Program and was injured in the following manner:
Susannah Caldwell has cerebral palsy and has strong morrow reflex in her left arm. This causes her left arm to bend at the elbow and throw her hand up involuntarily when she speaks, is surprised or experiences movement. During the incident, Susannah was strapped into a "sit ski" using over-the-shoulder harness without additional garment to secure her left arm inside her jacket in order to immobilize and protect her left arm. The school was aware of Susannah's condition and the need to zip her left arm but failed to do so. While in the "sit ski" going down the mountain, the sit ski hit a bump or a patch of ice which caused the injury – a severe fracture of the left humerus.

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 movant 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]).

Movant[1] failed to timely initiate an action in this court because, she states, she was collecting information and medical records "which I required in order to commence the action" (Burg affidavit, ¶8). In fact, it is not necessary for a litigant to assemble all relevant evidence in their control before filing and serving a claim or serving a notice of intention to file a claim. This is not a situation where evidence must be obtained and considered in order to determine if there was an injury. Consequently, movant's reason for delay is not excusable.
Movant further asserts that the State had notice of the essential facts constituting the claim because of communication with the Assistant Attorney General now assigned to the case that occurred in March 4004, within the 90-day time period in which a claim can be commenced or a notice of intention served. It appears that, sometime before March 18, 2004, movant requested from the State a copy of the accident report relating to this incident that was created and maintained by the staff of Whiteface Mountain Ski Center. In some fashion, this request was relayed to Assistant Attorney General McGown, who then requested that movant execute a HIPAA-compliant authorization to release the information. Because the matter was, for some reason, referred to the Office of the Attorney General, and because of some of the statements made in movant's e-mail communication,[2] it is evident that the State had notice of both the underlying facts giving rise to the claim and the party's intention to pursue litigation, if necessary, to obtain compensation for the injuries. Even if this were not the case, the period of delay is relatively short and it is unlikely that any of the participants will have forgotten the details of the traumatic event. Consequently, permitting the filing of an untimely claim would not result in substantial prejudice to the State. It also appears that movant has no available remedy against any party other than the State.
Movant 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 allegations, if proven, would make out a prima facie case of liability against the State. The Court disagrees with defense counsel and does not see the need for an expert's affidavit to establish the merit of this proposed claim. The allegations are not, as counsel states, that Ms. Caldwell received "negligent treatment" but that State employees operating the special program failed to take certain safety precautions (securing her left arm) that they knew were required because of her physical condition.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movants' motion for permission to file a late claim. Movants are therefore directed to file and serve a claim[3] 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 decision and order is filed.

November 15, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movants' motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affirmation of James W. Badie, Esq., with annexed affidavit of Judith Burg, Proposed Claim, and Exhibits

2. Affirmation in Opposition of Frederick H. McGown, III, Esq., AAG

3. Reply Affirmation of James W. Badie, Esq., with annexed Exhibit

Filed papers: None

[1]Movant refers to Judith Burg.
[2]Specifically, movant stated, "I'm sure once you read the reports, you will be able to understand how this injury happened and more importantly how similar injuries can be prevented." She also made it clear that she had retained an attorney in connection with the matter.
[3]The proposed claim attached to the moving papers should be amended so that it is worded as a claim, not a notice of intention.