New York State Court of Claims

New York State Court of Claims

LEGGETT v. THE STATE OF NEW YORK, #2006-016-033, Claim No. None, Motion No. M-70993


Late claim motion was 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):

Alan C. Marin
Claimant’s attorney:
Andrew F. Plasse, P.C.By: Andrew F. Plasse, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq.
Third-party defendant’s attorney:

Signature date:
May 9, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Curtis Randy Leggett moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim, Mr. Leggett alleges that on November 26, 2002, he slipped and fell on water that had leaked from the toilet in a holding cell at Queensboro Correctional Facility. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Defendant contends that it would be prejudiced by the granting of this motion because water on a floor is a transitory condition. However, claimant asserts that after his accident, a report was completed by the correction officer on duty, and he was immediately taken to the infirmary, where an inmate injury report was prepared. He also asserts that the officer on duty told him that the toilet had been leaking for “a couple of months” prior to the incident. The report of inmate injury does not refer to water, but log notes supplied by defendant refer to Leggett “claim[ing] while he was kicking the cell door he slipped on some water on the floor . . . ” See exhibit A to defendant’s opposition papers. Overall, the record is sufficient on these three factors.

As to an alternate remedy, the sole appropriate venue is an action in this Court against the State of New York. With regard to excuse, claimant’s attorney essentially states that claimant “did not mention this incident to me until very recently . . . .” See ¶5 of the November 23, 2005 affirmation of Andrew F. Plasse. Such is not a valid excuse for the purposes of the Act.

The remaining factor to be considered is whether the proposed claim appears meritorious. While defendant points out various inconsistencies in claimant’s version of the facts (for example with regard to timing), overall, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

Accordingly, having reviewed the parties’ submissions[2], IT IS ORDERED that motion no. M-70993 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his proposed claim and otherwise comply with §§11 and 11-a of the Court of Claims Act.

May 9, 2006
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The Court reviewed: claimant’s notice of motion with affirmation and affidavit in support and exhibit A; defendant’s affirmation in opposition with exhibit A; and claimant’s reply affirmation with exhibits A through D.