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
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
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
following his accident than if he had served it within the statutory 90-day
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
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'
, 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.