New York State Court of Claims

New York State Court of Claims

STURDIVANT v. STATE OF NEW YORK, #2005-018-453, Claim No. NONE, Motion No. M-69132


Claimant's motion to file late claim is 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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 1, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion seeking permission to file a late claim[1] 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[6]). 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 application.

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.

February 1, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Motion for permission to file late claim with notice of intention to file claim.......1

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General,

in opposition with exhibit attached thereto..................................................2

[1] Movant timely filed and served a claim (Claim No. 108282), alleging the same facts, which was dismissed on motion (M-67562) by a Decision and Order of this Court dated February 11, 2004, for failure to properly serve the Defendant.