Movant, pro se, brings a motion for permission to serve and file a late
opposes the motion.
The proposed claim alleges that on December 1, 2005, Movant, an inmate, was
transported outside of the prison on a trip to Ogdensburg. Movant had handcuffs
on his wrists, leg irons on his legs, and a black box secured with a chain
around his waist. Movant walks with a cane. As he was walking, the chain
slipped over his buttocks causing him to stumble and fall. Movant alleges that
the chain was not properly put on him. He asked the correction officer to
tighten the chain around his waist three times before he fell.
Movant attributes the delay in filing and serving a timely claim to his lack of
familiarity with the law and his inability to access professional legal counsel.
He asserts that he filed a claim in this matter previously; however, it was
dismissed for failure to verify the claim and properly serve the Attorney
General. Movant also alleges that the State had notice of the claim because
both he and the correction officers involved filed an accident report relating
to the incident.
Defendant opposes the motion, arguing that the motion papers are defective
because no notice of motion was submitted. It is Defendant’s position
that Movant has not met the criteria to permit the late filing of a claim
because he has no valid excuse for his untimeliness, and the accident report was
not notice to the State. Defendant maintains that there was no opportunity to
investigate, and the potential claim lacks merit.
Initially, although Movant did not label the first document with his motion a
“Notice of Motion,” for all practical purposes, it is adequately
sufficient advising Defendant what relief he is seeking and includes the legal
basis for the requested relief. Moreover, Movant properly and timely served
the Attorney General with a copy of the motion. Therefore, the Court has
attained sufficient jurisdiction to consider the motion (compare Matter of
Beck v Goodday, 24 AD2d 1016 [untimely service of motion papers];
Morabito v Champion Swimming Pool Corp., 18 AD2d 706 [untimely service of
motion papers]; 330 Central Park Realty Co. v Pandalfo, 144 Misc 2d 991
[without an application for relief Court cannot grant affirmative relief]).
The Court will consider the motion.
Court of Claims Act § 10(6) allows a claimant who has failed to properly
serve a notice of intention or who has failed to file and properly serve a claim
within the time frame set forth in Court of Claims Act § 10 to make an
application to the Court to file such a claim, in the discretion of the Court,
at any time before an action asserting a like claim against a citizen of the
State would be barred under article two of the CPLR (Court of Claims Act §
10). Movant’s motion is timely (Court of Claims Act § 10; CPLR
To determine whether an application for permission to file a late claim should
be granted, consideration must be given to the six factors listed in Court of
Claims Act § 10(6) and any other relevant factors. The presence or absence
of any one factor is not determinative (Bay Terrace Cooperative Section IV v
New York State Employees’ Retirement System Policemen’s and
Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New
York, 207 AD2d 965). Instead, it is a balancing of all of the factors by
the Court which may warrant the granting of the application to file and serve a
The first factor is whether the delay in filing the claim is excusable. Movant
has not set forth a valid excuse. Ignorance of the law is not an acceptable
excuse (Matter of Galvin v State of New York,176 AD2d 1185, lv
denied 79 NY2d 753).
The factors of whether the State had notice of the essential facts, an
opportunity to investigate the underlying claim, and whether the State will
suffer substantial prejudice if the late filing and serving of the claim are
permitted will all be addressed together. Defendant acknowledges that the State
received actual notice of this claim when it received a claim 89 days after the
incident on February 27, 2006. All Defendant is entitled to, under the
statute, is notice of the claim within 90 days of the date of accrual, which
Defendant received. These factors weigh in favor of granting Movant’s
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. Generally a proposed claim meets this standard
if it is not patently groundless, frivolous, or legally defective, and upon
consideration of the entire record, there is reason to believe that a valid
cause of action exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1,11). Movant asserts that he was injured while in
State custody as a result of the State’s configuration of the restraint
chains around his waist. Movant asserts that he asked several times to have
the chains tightened. Whether the placement of the chains on Movant created a
dangerous condition or whether the State had notice must be established at
trial. At this juncture Movant has set forth, at least minimally, sufficient
information to meet the low threshold to find a potential claim has the
appearance of merit.
The final factor is whether the proposed Movant has any other remedy available.
It does not appear from the facts as alleged that Movant would have any other
Accordingly, based upon the foregoing, Movant’s application is granted.
Movant is directed to pay the fee or make the appropriate application pursuant
to Court of Claims Act
§ 11-a and file and serve his proposed claim in accordance with the Court
of Claims Act and all other applicable rules within 60 days of the date this
Decision and Order is filed with the Clerk of the Court.
The Court has considered the following documents in deciding this motion:
Unsworn Motion for Permission to File Late Claim signed by Claimant,
in support, and dated August 6, 2006 with
Affirmation of Thomas M. Trace, Esquire, in opposition, with exhibit