New York State Court of Claims

New York State Court of Claims

RUDOLPH v. THE STATE OF NEW YORK, #2006-016-034, Claim No. None, Motion No. M-71176


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:
Tyrone Rudolph, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 10, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Tyrone Rudolph moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”).[1] In his proposed claim, Mr. Rudolph alleges that on January 2, 2004, while playing basketball in the Sullivan Correctional Facility gym, he slipped and fell on a “wet spot” caused by a leak in the gym ceiling.[2] 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.[3]

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). In this case, claimant asserts that two correction officers and a “recreation aide” were present when he fell, and he has submitted a “Report of Inmate Injury” that was prepared as to the incident (although such does not refer to him having slipped on water). See exhibit C to claimant’s moving papers. He also maintains that defendant was aware of the leak for years prior to his accident. See exhibits D and E to claimant’s moving papers. It should be noted that defendant makes no argument with regard to these three factors, and I find the record to be sufficient on them.

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 notes that he is not a lawyer and had no access to counsel. Such is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The remaining factor to be considered is whether the proposed claim appears meritorious. Defendant notes that claimant originally served a notice of intention as to an alleged March 18, 2005 slip and fall (see note 2 above), and only pursued this claim as to his January 2, 2004 fall after he learned that the “roof leak (such as it was) had been repaired” prior to March 18, 2005. See ¶5 of the March 13, 2006 affirmation of Joseph F. Romani. As to the January 2, 2004 fall, defendant points out that neither the Report of Inmate Injury, the logbook entry, nor claimant’s contemporaneous medical records refer to water on the floor. Defendant also submits several affidavits, e.g., from a nurse and correction officers, who state that claimant did not mention water to them after his fall. However, claimant submits the affidavit of an inmate who states that he witnessed the fall and saw water on the floor and water dripping from the ceiling. On balance, 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[4], IT IS ORDERED that motion no. M-71176 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 10, 2006
New York, New York

Judge of the Court of Claims

  1. [1]After making this motion, claimant also sought the assignment of counsel in a filing he made with the Clerk’s Office. Such is generally not available for civil cases. See Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975).
  2. [2]Although the proposed claim refers to another incident in which claimant allegedly slipped and fell on the gym floor on March 18, 2005 because “the wrong chemical(s)” had made the floor slippery, claimant indicates in his reply papers that he is not seeking redress as to the latter incident in such claim.
  3. [3]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).
  4. [4]The Court reviewed: claimant’s notice of motion with affidavit in support, proposed claim and exhibits A through G; defendant’s affirmation in opposition with exhibits A through C; and claimant’s reply affidavit with exhibit A.