On October 19, 2005, the following papers were read on motion by Claimant for
permission to file a late claim:
Notice of Motion and Affidavit and Proposed Claim Annexed
Opposing Affidavit and Exhibits Annexed
Upon the foregoing papers, this motion is denied.
Claimant moves for permission to file a late claim pursuant to Court of Claims
Act §10(6). The underlying incident herein occurred on March 4, 2005 when
Claimant, an inmate being transported in a vehicle operated on behalf of the New
York State Department of Correctional Services (DOCS), allegedly was injured.
It appears from the allegations of the proposed claim and the supporting
affidavit that the driver of the bus, a correction officer, allegedly jammed on
the brakes while traveling at least 30 miles per hour, and Claimant, handcuffed
and chained around the waist with leg chains and with no seatbelt on, was
propelled forward and hit his knees on the back of the seat directly in front of
This motion was served by mail on August 23, 2005, and, as Claimant correctly
asserts, is timely made within the constraints of CPLR article 2. In addressing
the six statutory factors of Section 10(6) seriatim, Claimant's excuse
for failing to timely file his claim is his lay status as a non-lawyer and lack
of access to counsel or the facility law library during the 90-day period
following this incident "because of the illeness [sic] caused by the incident
underlying this claim." While incapacity proximately caused by the underlying
incident could provide a reasonable excuse for the failure to timely file, here
Claimant provides no medical records or specifics to support such contention.
Conversely, the Defendant does provide a copy of Claimant's ambulatory health
record for the date of the incident, wherein it contends that Claimant did not
report any injury related to this accident (Exhibit A to Defendant's affidavit).
I find that Claimant has failed to present a reasonable excuse for his failure
to timely file. Of course, Claimant need not satisfy all six factors to be
successful (Bay Terrace Coop. Section IV v New York State Employees'
Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d
With respect to timely notice of the essential facts constituting the claim and
the opportunity to investigate, Claimant relies on the alleged awareness of
medical personnel during his several visits to the "prison dispensary," and
suggesting that the Defendant had the opportunity to question the bus driver and
other inmates who were present on the bus. Medical treatment per se does not
necessarily provide notice with respect to the underlying allegations of the
incident, but rather only to purported injuries. This argument is weakened
inasmuch as Claimant has provided no documentation to support this contention,
and, as noted above, the submitted ambulatory health record for the date of the
accident does not appear to support the suggestion of notice.
Claimant correctly notes that he has no other available remedy for his alleged
injuries, and it does not appear that the Defendant would be substantially
prejudiced should I grant this application.
As is typically the case, the most significant factor is that of the appearance
of meritoriousness of the underlying cause of action. Claimant ascribes
negligence to the driver in hitting the brakes because another inmate had stood
up during transport. His proposed claim asserts negligence in not providing
safe transportation, not properly maintaining the vehicle, not utilizing
seatbelts as "required" for buses, and the lack of proper training of the
officers. To the extent that Claimant relies upon the absence of seatbelts to
ascribe negligence to the Defendant, I am persuaded that, since seat belts are
not required in buses, such allegation does not have merit (see, Figueroa v
State of New York
, Ct Cl, UID #2003-009-61 [Claim No. 104206, Motion No.
M-66320], Dec. 18, 2003, Midey J.
19 AD3d 1053]).
Generally speaking, in a late claim application, it is Claimant's burden to
show that the proposed cause of action is not patently groundless, frivolous or
legally defective and that there is reasonable ground to believe that a cause of
action may exist (Matter of Santana v New York State Thruway Auth., 92
Misc 2d 1). Thus, I would consider whether there is the appearance of
meritoriousness as to Claimant's remaining allegations of improper maintenance,
lack of training and negligence in failing to provide safe transportation.
The Defendant, however, raises a threshold issue of the Claimant's failure to
allege, let alone demonstrate, that he has suffered a serious physical injury as
defined in Insurance Law §5102(d). It is clear that personal injury
actions arising out of the negligent use of a motor vehicle are subject to
particular restrictions and it is well-settled that vague and conclusory
statements do not qualify to satisfy Claimant's burden to make a showing of a
serious injury (Matter of Edwards v State of New York, 119 Misc 2d 355).
Here Claimant offers nothing more than his own statement that he hit his knees,
"causing extensively [sic] physical injury" and that he is still receiving
treatment for his injuries. He estimates a cost for surgery in his ad
damnum, but nowhere does he address the nature of his injuries, or the type
of surgery he suggests may take place in the future, or supply any documentation
addressing his purported injuries. Significantly absent from his motion is any
documentation of his physical condition, and, I find that without more Claimant
has not made a sufficient showing of serious injury to establish the appearance
of merit for late claim purposes (see Dehoney v State of New York,
Ct Cl, UID #2003-030-551 [Motion No. M-66564], July 10, 2003, Scuccimarra,
Accordingly, Claimant's motion for permission to file a late claim is in all