Affirmation in Opposition and
Claimant seeks leave to serve and file a late claim alleging that on April 21,
2004, during her incarceration within the special housing unit at Bedford Hills
Correctional Facility, she was “handcuffed in front using heavy box
shackles, in contravention to a medical modified restraint order” and was
“compelled to carry her files to bring to the hearing, despite being
shackled, in contravention to when Claimant was caused to slip and fall due to a
dangerous and known condition existing consisting of broken asphalt”
(Notice of Claim, ¶2). The Notice of Claim alleges damages in the amount
of one million dollars, without specification. Her affidavit states that she
suffered a broken finger, nerve damage to her elbow and reinjury to her shoulder
(Affidavit, ¶ 3).
The determination of a motion for leave to file a late claim requires the
Court to consider, among other relevant factors, the six factors set forth in
Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely
claim or serve a timely notice of intention resulted in substantial prejudice to
the State; and (6) whether the claimant has another available remedy. The
presence or absence of any one factor is not determinative and the list of
factors is not exhaustive (see Bay Terrace Coop. Section IV v New York
State Employees' Retirement System Policemen's & Firemen's Retirement
System, 55 NY2d 979).
The Court has considered the above six factors.
Claimant’s purported excuse for not timely commencing an action is that
she “lived in fear of retaliation *** and feared that should [she] have
filed a new lawsuit, [she] would be further tortured” (Cl’s
Affidavit, P 4). Notably, claimant’s present counsel also represented her
in Claim No. 101872 which accrued on November 7, 1999 and was decided by this
Court in claimant’s favor on April 30, 2004 (see Kellogg v State
of New York, Ct Cl, May 5, 2004, Ruderman, J.). After a trial on the issue
of damages, by Decision dated March 3, 2005, claimant was awarded $95,000.
Defendant has included as exhibit B excerpts from the damages trial transcript
wherein claimant’s attorney stated that future litigation was being
contemplated regarding another incident that occurred at Bedford Hills
Correctional Facility (Ex. B, p 75). Accordingly, this Court finds that
claimant had the opportunity to confer with counsel in a timely manner regarding
commencing an action based on the alleged slip and fall of April 21, 2004. This
Court does not find claimant’s purported excuse for delay to be
In deciding a motion for leave to serve and file a late claim, the most
significant factor is whether the proposed claim has an appearance of merit.
Unlike a party who has timely filed a claim, a party seeking to file a late
claim has the heavier burden of demonstrating that the proposed claim appears to
be meritorious (see Nyberg v State of New York, 154 Misc 2d 199;
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
“A general allegation of negligence on the part of the State is
insufficient to establish a meritorious cause of action” (Witko v State
of New York, 212 AD2d 889, 891).
To show the appearance of merit of this negligence claim, claimants must have
a basis for the allegation that there was a foreseeably dangerous condition
which defendant either created or had notice of and failed to remedy within a
reasonable time and that such failure was a proximate cause of claimant’s
injuries (see, Gordon v American Museum of Natural History, 67
While merely submitting a photograph of the alleged accident site does not, by
itself, establish the appearance of merit of the proposed claim (see,
Matter of Gallagher v State of New York, 236 AD2d 400 [photograph was
taken approximately 8 months after the accident and did not establish merit]),
here, claimant has not even submitted a photograph showing the alleged defect
(see, Ferlito v Great South Bay Assocs., 140 AD2d 408, 409
[photographs may be used to prove constructive notice if taken reasonably close
in time to the accident]).
Claimant’s unsupported self-serving allegations are insufficient to
establish the appearance of merit (see Klingler v State of New
York, 213 AD2d 378 [claimant’s unsupported opinion does not suffice to
establish merit of their claim]). Significantly, claimant failed to submit an
accident report, a witness statement, or a medical record establishing that
defendant’s alleged negligence was a proximate cause of the alleged
accident (see Matter of Gallagher v State of New York, 236 AD2d
400 [nine month delay caused State substantial prejudice and claimant did not
establish appearance of merit merely by submitting a photograph of the accident
site]; Sevillia v State of New York, 91 AD2d 792 [claimant did not
establish merit where there was no accident report or a witness’
statement]). Additionally, claimant does not even allege any specifics as to
the particulars of the purported condition or its precise location.
Claimant’s delay has substantially prejudiced defendant because the
State was not afforded the opportunity to timely investigate the circumstances
underlying the claim (see Nicometti v State of New York, 144 AD2d
1036 [delay was inexcusable and prejudiced the State because it had not
investigated the accident]).