New York State Court of Claims

New York State Court of Claims

PAGE v. THE STATE OF NEW YORK, #2005-016-006, Claim No. None, Motion No. M-69023


Late claim motion alleging slip and fall at Arthur Kill Correctional facility was granted.

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):

Alan C. Marin
Claimant's attorney:
Robert W. Nishman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 4, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Harry Page for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Page alleges that on August 5, 2002, while jogging in the Arthur Kill Correctional Facility gym on Staten Island, he slipped and fell because of a "worn, leaky, water pooled condition" on the running track. His alleged injuries include "an anterior cruciate ligament tear, bone bruise involving the medial aspect of the lateral femoral condyle and posterior lateral tibia and medial collateral ligament sprain and suprapatellar effusion." See ¶5 of the proposed claim annexed to claimant's reply papers.[1]

In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

As to notice, claimant points to a number of documents prepared on or about the day of his accident: his facility medical record; a "Report of Inmate Injury"; a watch commander log entry; and a medical report from the outside hospital where he was treated. Of such documents, only the "Report of Inmate Injury" refers to claimant having slipped on water; the other three documents refer only to claimant having slipped and fell in the gym, and thus could not have put defendant on notice. As to the "Report of Inmate Injury," it states that claimant "slipped on some water that was on the running path," but provides no information as where on such path the water was (and makes no reference to an ongoing leakage problem, which claimant contends was the source of the water). In view of the foregoing, the notice factor has not been met.

As to opportunity, if the water condition was in fact caused by an ongoing leakage problem of which defendant was aware (as opposed to something like a spilled water bottle), such might provide defendant with some opportunity to investigate, but, as set forth above, the documents cited by claimant provided no notice of the location of his fall such that defendant could link it with a leakage problem. The opportunity factor has thus not been met.

There is no prejudice in this case because of the transitory nature of the water condition, i.e., defendant was in no different position when claimant served a claim on the 93rd day[3] following his accident than if he had served it within the statutory 90-day period.

As to an alternate remedy, it is undisputed that claimant's sole remedy would lie against the State of New York in this Court. As to excuse, claimant maintains that he mistakenly thought he could mail his claim within the ninety day period following accrual (as opposed to ensuring it was received during such time). Such is not an adequate excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. As set forth above, in addition to his affidavits as to what happened, claimant has submitted numerous documents referring to his fall, as well as medical records concerning his injuries. Defendant argues that claimant has not shown actual or constructive notice of a leakage problem as of August 5, 2002, noting that the various documents claimant has submitted regarding such problem are all dated approximately a year after his accident. While claimant will presumably have such a burden at trial with regard to actual or constructive notice, for the purposes of this motion, claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

Accordingly, having reviewed the parties' submissions[4], IT IS ORDERED that motion no. M-69023 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim and otherwise comply with §§11 and 11-a of the Court of Claims Act. For his claim, claimant shall use the revised proposed claim annexed to his reply papers.

February 4, 2005
New York, New York

Judge of the Court of Claims

  1. [1]In response to defendant's contention that the proposed claim annexed to Page's moving papers was not sufficiently descriptive for the purposes of §11 of the Court of Claims Act, claimant submitted a revised proposed claim with his reply papers. Having reviewed such revised proposed claim, I find that it is adequate for the purposes of §11.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]Claimant served a claim (no. 107508) on November 6, 2002, 93 days after his accident. Such claim was dismissed as untimely served in a July 1, 2003 Decision and Order on motion no. M-66683.
  4. [4]The Court reviewed: claimant's notice of motion with affirmation and affidavits in support, proposed claim, exhibits 1 through 9 and case law; defendant's affirmation in opposition with exhibits A through C; and claimant's reply affirmation with affidavit, revised proposed claim and exhibits 10 through 15.