New York State Court of Claims

New York State Court of Claims

HEYWARD v. THE STATE OF NEW YORK, #2006-009-053, Claim No. NONE, Motion No. M-71899


Claimant’s application for late claim relief was granted.

Case Information

MARGARET HEYWARD, Individually, and as the Parent and Natural Guardian of VANESSA HEYWARD, CLARISSA HEYWARD and JACOB HEYWARD
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:
BY: Louis B. Cristo, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Margaret Heyward has brought this motion seeking permission to serve and file a late claim on her own behalf, as well as on behalf of her three infant children, Vanessa Heyward, Clarissa Heyward and Jacob Heyward.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Louis B. Cristo, Esq., with Exhibit (Proposed Claim).... 1,2

Correspondence dated July 17, 2006 from Ed J. Thompson, Esq., Assistant Attorney

General 3

In her proposed claim, Margaret Heyward seeks damages suffered by her and her three infant children when they were allegedly exposed to a cryptosporidium parasite during their visit to a “spraypark” located at the Seneca Lake State Park in Geneva, New York, in August, 2005. She alleges that she and her children contracted cryptosporidiosis as a result of their exposure to the cryptosporidium parasite, and that they became violently ill as a result of this exposure.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

Prior to addressing these factors in conjunction with this application, however, the Court notes that throughout this application, Vanessa Heyward, Clarissa Heyward and Jacob Heyward are all referred to as infants. Although dates of birth were not provided for these children, it appears to the Court that these three children are indeed infants and therefore under a legal disability as defined by CPLR § 208. Pursuant to Court of Claims Act § 10(5), if a claimant is under a legal disability, the claim may be presented within two years after the disability has been removed. Accordingly, the time within which claims could be asserted by Vanessa Heyward, Clarissa Heyward and Jacob Heyward has not elapsed, and any application for late claim relief on their behalf is unnecessary (see Boland v State of New York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424).

With regard to the individual claim of Margaret Heyward, however, the Court must consider the statutory factors on this application.

The only excuse proffered by claimant is that she was unaware of the time limitations for pursuing such a claim against the State of New York contained in the Court of Claims Act. This explanation, however, is equivalent to ignorance of the law, which is not an acceptable excuse for delay (Matter of E.K. v State of New York, 235 AD2d 540). The Court therefore finds that claimant has not provided an acceptable excuse for her failure to timely serve and file this claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. The Court is aware, and takes judicial notice of the fact that following this parasitic outbreak, the spraypark was closed by the State Department of Health in August, 2005. In arriving at this decision, the Department of Health had determined that water from the spraypark was contaminated with cryptosporidium.

The State, therefore, had prompt notice of the essential facts constituting this claim, and not only did it have an opportunity to investigate the underlying facts, such an investigation was in fact conducted by the Department of Health.

Furthermore, this Court may take judicial notice of its own calendar (Stella v Stella, 92 AD2d 589), which contains other timely commenced claims against the State of New York arising from this cryptosporidium outbreak at the spraypark. In fact, this Court has recently consolidated two such claims, and then determined that the consolidated claim should proceed as a class action.[1] The timely service and filing of these prior claims has further provided the State with prompt notice of the essential facts, the opportunity to investigate those facts, and in this Court’s opinion, establishes a lack of prejudice.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In her claim, claimant alleges that she visited the spraypark at a time when the water was contaminated with cryptosporidium, and that she and her children all became seriously ill as a direct result of their exposure to this parasite. With these allegations, claimant has demonstrated potential merit to her proposed claim, sufficient to satisfy the minimal requirements of Santana.

It does not appear to this Court that claimant has any other available remedy.

Accordingly, after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), it is the opinion of this Court that claimant should be allowed to serve and file her proposed claim together with the claim of her infant children.

Therefore, it is

ORDERED, that Motion No. M-71899 is hereby GRANTED; and claimant is directed to file and serve her proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

September 29, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. See Decision and Order to Motion Nos. M-71063/M-71115, Arroyo v State of New York, Ct Cl, June 29, 2006, Midey, J., Claim Nos. 111362/111361, (UID #2006-009-037). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at