New York State Court of Claims

New York State Court of Claims

SHABAZZ v. THE STATE OF NEW YORK, #2005-009-008, Claim No. NONE, Motion No. M-69337


Synopsis


Claimant's motion to serve and file a late claim was denied, without prejudice, since claimant failed to address the statutory factors set forth in Court of Claims Act § 10(6).

Case Information

UID:
2005-009-008
Claimant(s):
SHERON SHABAZZ The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
SHABAZZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69337
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SHERON SHABAZZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 17, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim 1,2,3


Affirmation in Opposition, with Exhibit 4

Reply 5

In his proposed claim, claimant seeks to recover damages for personal injuries allegedly suffered by him on January 11, 2004 at Mohawk Correctional Facility, where he was then incarcerated. He alleges that he slipped and fell while running across a wet floor, injuring his head and lower back. He further alleges that there were no caution signs present at the time advising inmates that the floor was wet, and that a correction officer directed him to run across the floor to pick up a bowl of food.

In a Decision and Order dated September 13, 2004[1] this Court dismissed a virtually identical claim of the claimant, finding that such claim was jurisdictionally defective for failing to state the total sum sought as damages (see Lepkowski v State of New York, 1 NY3d 201, 207). In that Decision and Order, the Court noted that claimant had the option of pursuing late claim relief pursuant to Court of Claims Act § 10(6), and the instant motion now seeks such permission. This Court noted that the jurisdictional defect could not be cured simply by an amendment of the original claim.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117).

In his affidavit in support of this application, however, claimant has failed to address any of these six statutory factors, but rather has simply amended his prior claim by updating his address and including a sum certain for damages (see par. 2 of proposed claim). Similarly, defendant's attorney has not addressed these factors in his affirmation in opposition.

Accordingly, after considering the submitted papers, the Court finds that it cannot adequately address the statutory factors which the Court must consider in determining an application to late file a claim under § 10(6).

Accordingly, it is

ORDERED, that Motion No. M-69337 is hereby DENIED, without prejudice. If claimant decides to make another motion for the same relief, he is cautioned that full compliance with § 10(6) is required.


February 17, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] See Decision and Order to Motion No. M-68390, Claim No. 109114.