New York State Court of Claims

New York State Court of Claims

KELLOGG v. THE STATE OF NEW YORK, #2006-010-020, Claim No. NONE, Motion No. M-71612


claimant’s motion for leave to serve and file a late claim is denied as claimant’s delay has substantially prejudiced defendant

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant’s motion for leave to serve and file a late claim:
Notice of Motion, Claimant’s Supporting Affidavit, “Notice of Claim”.................1

Affirmation in Opposition and Exhibits...................................................................2

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 acceptable.

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 NY2d 836).

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]).
Accordingly, upon weighing all the factors, claimant’s motion for leave to file and serve a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).

June 26, 2006
White Plains, New York

Judge of the Court of Claims