New York State Court of Claims

New York State Court of Claims

LATHROP v. THE STATE OF NEW YORK, #2006-039-001, Claim No. None, Motion No. M-71729


Synopsis



Case Information

UID:
2006-039-001
Claimant(s):
CHRISTOPHER LATHROP
Claimant short name:
LATHROP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-71729
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Christopher Lathrop, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 28, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Christopher Lathrop (hereinafter “movant”) seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). The Court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]).

When deciding whether to grant an application to file a late claim, the court is required to consider
among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy (Court of Claims Act § 10 [6]).

Here, movant attributes the delay in filing to his ignorance of the law, which he posits was “compounded by [his] incarceration . . . [his] limited ability to confer with counsel and [his] lack of access to legal references [sic] which apply to the Court of Claims.” “To be sure, ignorance of the law is not an acceptable explanation for the failure to serve a timely notice of claim” (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv dismissed 99 NY2d 589 [2003]). “Similarly, conclusory allegations that one is incarcerated and without access to legal references have also been rejected as a reasonable explanation” (Matter of Sandlin v State of New York, supra at 724). Thus, movant has failed to set forth an adequate explanation for his delay in filing the claim.

The Court further finds that movant has failed to establish that his claim is meritorious. Movant offers his affidavit and a proposed claim in support of his motion. In these documents he alleges, among other things, that during November 2004, while attempting to retrieve cases of milk from the top of “over stacked” pallets, several cases fell from the top onto his arms and shoulder, and he sustained injuries. He further alleges that, thereafter, he underwent a series of medical examinations and misdiagnoses. To the extent that movant sets forth allegations of medical malpractice, the Court notes that he failed to provide any medical evidence in support of this aspect of his claim (see Matter of Gonzalez v State of New York, 299 AD2d 675, 676 [2002]; Matter of P.A. v State of New York, 277 AD2d 671, 672 [2000]; compare Matter of Hughes v State of New York, 25 AD3d 800 [2006]). Nor do movant’s allegations “remotely demonstrate that the State failed to exercise reasonable care to protect him from any foreseeable risk of harm” (Matter of Sandlin v State of New York, supra at 725). Finally, movant’s assertion that the State had notice of the facts underlying this claim because it investigated the incident is unavailing. “Even assuming this to be true, same cannot fairly be said to have apprised the State of the precise claim now being asserted, namely, that it . . . is somehow responsible for [the pallets falling down or the failure to properly diagnose claimant’s injuries]” (id. at 724).

For the reasons discussed above, the Court finds that movant’s motion to serve and file a late claim must be denied.

Accordingly, it is ORDERED that Motion No. M-71729 is hereby denied.




November 28, 2006
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims






Papers Considered:

  1. Notice of Motion filed May 15, 2006;
  2. Affidavit of Claimant in Support of Motion, sworn to on May 10, 2006;
  3. Proposed Claim, sworn to on May 10, 2006; and
  4. Affidavit in Opposition sworn to on May 24, 2006.