Movant brings a motion seeking permission to file a late
pursuant to Court of
Claims Act § 10(6). Defendant opposes the motion.
Movant has submitted two documents in support of his motion. One is a form
requesting permission to file a late claim, which addresses some of the factors
required to be considered in Court of Claims Act § 10(6). He has also
attached a "Notice of Intention to File a Claim" which asserts that on June 19,
2003, in the E-2 dorm area of Cape Vincent Correctional Facility he slipped and
fell in a puddle of water when he approached the "slop sink" to wash dishes.
He alleges that a correction officer was aware of the puddle of water on the
floor, but did not have the water cleaned up and had no warning signs placed.
As a result of his fall he states he "tore the cartaledge [sic] in my right knee
and had to have several legements [sic] repaired." (Notice of Intention to File
a Claim, second page, last paragraph).
Defendant opposes the motion, arguing that Movant has failed to submit a
proposed claim and therefore, the merits of the claim cannot be addressed and
the motion must be denied.
Court of Claims Act § 10(6) allows a claimant who has failed to timely
serve a notice of intention or who has failed to file and timely serve a claim
within the time frame set forth in Court of Claims Act § 10 to make an
application to the Court to file such a claim, in the discretion of the Court,
at any time before an action asserting a like claim against a citizen of the
State would be barred under article two of the CPLR (Court of Claims Act §
10). A proposed claim, containing all of the information required by Court
of Claims Act § 11 is required to be provided with the late claim
application. Movant has failed to attach a proposed claim. It appears that
the Movant intended the "Notice of Intention to File a Claim" to be the
proposed claim, and the Court will treat it as such for purposes of this
In applying the six factors listed in Court of Claims Act § 10(6), no one
factor is determinative, rather all the factors are balanced in arriving at the
decision of whether to grant or deny Movant permission to serve the late claim
(Bay Terrace Cooperative Section IV, Inc., v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979;
Ledet v State of New York, 207 AD2d 965).
The first factor is whether the delay in filing the claim is excusable. The
fact that Movant is not a lawyer and did not have access to legal counsel or the
prison library during the statutory period is offered as an excuse for his
failure to timely serve a claim on the Attorney General by certified mail.
Ignorance of the law, however, is not an acceptable excuse (Matter of Galvin
v State of New York,176 AD2d 1185, lv denied 79 NY2d 753).
The next three factors, notice of the underlying facts, opportunity to
investigate, and whether the Defendant will suffer prejudice if permission is
granted to file the late claim, will all be considered together because they are
related. Since Movant previously filed and served a timely claim alleging the
same underlying facts, albeit by an unauthorized means of service, Defendant
had timely notice and an opportunity to investigate the circumstances
surrounding this proposed claim. As a result, Defendant will suffer no
prejudice by the granting of this motion.
Whether the proposed claim is potentially meritorious is the next factor. This
factor is often referred to as the most essential factor. Generally, a proposed
claim meets this standard if it is not patently groundless, frivolous or legally
defective, and upon consideration of the entire record, there is cause to
believe that a valid cause of action exists (Matter of Santana v New York
State Thruway Authority, 92 Misc 2d 1,11). Based upon the allegations set
forth, there is sufficient information before the Court to find that Movant has
a valid cause of action.
The final factor, whether Movant has any other remedy weighs in favor of his
application. It does not appear that Movant, an inmate, would have any other
remedy available to him.
Accordingly, the Court will grant Movant's application. Before filing and
serving the document that is attached to his motion papers, described as a
"Notice of Intention to File a Claim," Movant should re-label it as a "Claim,"
include the total sum claimed for damages and attach a proper verification.
Movant must then file the claim with the Clerk of the Court of Claims and serve
a copy upon the Attorney General, in accordance with the requirements of Court
of Claims Act § 11, and the applicable court rules, within 60 days of the
date this Decision and Order is filed with the Clerk of this Court.