This is a motion by Lenisa Sanchez (hereinafter "movant") for permission to
file a late claim pursuant to Court of Claims Act
, relating to alleged negligence of
the State of New York (hereinafter "State") between March 5, 2003 and March 6,
The alleged negligence occurred while movant was a resident of the Brentwood
Residential Center, New York State Office of Children and Family Services in Dix
Hills, New York. Movant was scheduled to be released from the facility on March
6, 2003. The evening of March 5, 2003, movant was having difficulty sleeping.
A male aide allowed movant to leave her room and watch television with him. In
addition, the aide supplied movant with cigarettes and forced her to perform
oral sex on the aide. The details of the multiple encounters with the aide
during the evening and early morning hours of the incident dates are contained
in movant's papers and in her claim. In between one of her contacts with this
aide, movant asked another aide to please turn the alarm in her room on, but
this was not done.
Defendant opposes the motion.
In order to determine whether to grant a timely made application for permission
to file a late claim, the Court must consider, among any other relevant factors,
the six statutory factors set forth in Court of Claims Act §10(6):
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the
(3) whether the State had an opportunity to investigate the circumstances
underlying the claim;
(4) whether the failure to file or serve a timely claim or serve a timely notice
of intention resulted in substantial prejudice to the State;
(5) whether movant has another available remedy; and
(6) whether the claim appears to be meritorious.
The Court in the exercise of its discretion balances these factors, and, as a
general rule, the presence or absence of any one factor is not dispositive
(Bay Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's and Firemen's Retirement System, 55 NY2d 979).
Movant offers no excuse in regard to the delay in filing a claim. The Court
notes that movant did not retain counsel until April 2004. However, movant's
failure to retain counsel in a timely fashion is not a justifiable excuse.
The second, third and fourth factors (notice of the essential facts
constituting the claim; an opportunity to investigate the circumstances
underlying the claim; and whether the delay resulted in substantial prejudice to
the State) are related. The Court will consider these factors together.
Movant alleges that the State had notice of the essential facts of this case in
a timely fashion because she gave statements to the Suffolk County Police and
testified before a grand jury. Movant's report to the local police or local
district attorney's office is not notice to the defendant (Quilliam v State
of New York, 282 AD2d 590). However, movant's papers indicate that in April
2003, her alleged assailant was suspended by the State pending an investigation
of this incident. Therefore, the Court finds that the State had notice of the
essential facts and an opportunity to investigate. The Court finds that the
State will not suffer substantial prejudice.
Movant does not appear to have an alternate remedy. Movant seeks to claim
negligence against the State for its role in supervising her assailant and the
other aide on duty. However, any actions against the aides directly would be
intentional torts and the statute of limitations for these actions has passed.
While the presence or absence of any one of the six factors is not dispositive,
(see Bay Terrace Coop. Section IV v New York State Employees' Retirement
System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most
critical factor always is the apparent merit of the proposed claim. The movant
need only establish that the proposed claim is not patently groundless,
frivolous or legally defective and 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). If a movant cannot meet this low threshold and the
claim is patently without merit it would be meaningless and futile for the Court
to grant the application even if all the other factors in Court of Claims Act
§10(6) weighed in favor of the movant's request.
The Court is satisfied that the claim exhibits the appearance of merit.
In conclusion, the majority of factors favor movant. Therefore, movant's
application to file a late claim is granted. Movant shall serve and file the
proposed claim pursuant to Court of Claims Act §§10, 11 and 11-a
within forty-five (45) days of the filing of this decision and order.