New York State Court of Claims

New York State Court of Claims

LONG v. THE STATE OF NEW YORK, #2007-009-017, Claim No. 113050, Motion Nos. M-72815, M-72890


Synopsis


Defendant’s motion to dismiss the claim based upon untimely service was granted, and claimant’s motion seeking permission to serve and file a late claim was granted.

Case Information

UID:
2007-009-017
Claimant(s):
RUSSELL LONG
Claimant short name:
LONG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113050
Motion number(s):
M-72815, M-72890
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
RUSSELL LONG, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 29, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought a motion (M-72815) seeking an order dismissing the claim based upon untimely service. Although he has not submitted any response to the motion to dismiss, claimant has submitted a motion (M-72890) seeking permission to serve and file a late claim, based upon the same allegations as contained in his filed claim (Claim No. 113050). For purposes of judicial economy, therefore, both motions will be considered herein.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support, with Exhibit (M-72815) 1,2


Correspondence from claimant, dated January 21, 2007 (M-72890) 3


Notice of Motion, Affidavit in Support, with Exhibit (M-72890) 4,5


Affirmation in Opposition (M-72890) 6

Filed papers: Claim No. 113050.

In his claim (Claim No. 113050), claimant seeks damages for personal injuries suffered by him on November 26, 2004, when he alleges that he slipped and fell on a wet floor in his dormitory room at Marcy Correctional Facility, where he was then incarcerated.

Such a claim, alleging acts of negligence against the State, must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a Notice of intention to serve and file a claim is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3]). If a notice of intention is timely and properly served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

The requirements of § 10 are jurisdictional prerequisites to the maintenance of a claim, and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721; Phillips v State of New York, 237 AD2d 590).

In this particular claim, defendant acknowledges that a notice of intention was served upon the Attorney General. Accordingly, in order to be timely served, the claim had to be served upon the Attorney General within two years from the date of accrual on November 26, 2004. As set forth in the affirmation of defendant’s attorney, the claim was not served upon the Attorney General until December 12, 2006, more than two years from the date of accrual. Defendant has attached a copy of the envelope in which the claim was received (see Exhibit A to Items 1,2), which indicates that the claim was received on December 12, 2006. This claim is therefore subject to dismissal for untimely service of the claim.

As noted above, claimant did not submit any papers in opposition to this motion, apparently acknowledging his late service of the claim. Instead, claimant has brought an application (M-72890) seeking permission to serve and file a late claim.

Pursuant to § 10(6) of the Court of Claims Act, such application may be brought “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” Since this claim is based upon allegations of negligence accruing on November 26, 2004, claimant’s application is therefore timely, as it was brought within three years from the date of accrual (see CPLR § 214).

Additionally, Court of Claims Act § 10(6) specifically requires that a proposed claim must accompany any application seeking permission to serve and file a late claim, and defendant’s attorney has noted, in his opposition papers, that claimant failed to attach such a proposed claim to his moving papers. However, in the interest of judicial economy, this Court will consider claimant’s previously filed (although untimely) claim as his “proposed claim” for purposes of addressing this application on the merits.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant contends that he attempted to timely serve his claim while incarcerated at Marcy Correctional Facility, and he has submitted a copy of his “Disbursement or Refund Request” form that was submitted by him requesting that the cost of certified mailing be deducted from his inmate account. This request form, however, is dated November 23, 2006, and was stamped “received” by facility personnel on November 24, 2006. As previously noted, however,

since his claim accrued on November 26, 2004, claimant’s claim had to be served upon the Attorney General and filed with the Clerk of the Court of Claims by November 27, 2006[1]. Since his request for postage was not made until November 23, 2006, it was unrealistic of claimant to expect that his request could be processed and approved, and then served and filed, in such a short period of time. Accordingly, the Court finds that claimant’s failure to timely serve and file his claim resulted solely from his actions, and not from the inaction of facility officials in failing to process his request. Therefore, claimant has failed to provide an acceptable excuse for his failure to timely serve and file his claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this matter, defendant acknowledges that a notice of intention to serve and file a claim was served upon the Attorney General on February 24, 2005, within 90 days from the accrual date of November 26, 2004. Having been placed on notice of a potential claim within the 90-day period following the alleged incident forming the basis of this claim, the State therefore had the opportunity to conduct an investigation into the circumstances surrounding this incident. The Court further finds that the State would not be substantially prejudiced in its defense of this claim should this application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In this matter, claimant has alleged that he was injured when he slipped on a wet floor in his dormitory at Marcy Correctional Facility, a building which is obviously under the care and control of the State. Contrary to the contentions raised by defendant’s attorney in his affirmation in opposition to this motion (see Item 6), claimant is not required to establish each and every element of his cause of action, but must merely establish that there is reasonable cause to believe that a valid claim exists. In this particular matter, the Court finds that claimant has satisfied this minimal burden and has established the appearance of merit.

It does not appear that claimant has any other remedy available to him.

Therefore, after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-72815 is hereby GRANTED; and it is further

ORDERED, that Claim No. 113050 is hereby DISMISSED; and it is further

ORDERED, that Motion No. M-72890 is hereby GRANTED; and claimant is directed to serve and file a properly verified claim, in substantial compliance with the previously filed claim which has been dismissed herein (Claim No. 113050) within 45 days from the date of filing of this decision and order in the Clerk’s office; and claimant is advised that such service and filing must be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.


June 29, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Since November 26, 2006 fell on a Sunday, claimant’s claim therefore had to be served and filed by Monday, November 27, 2006 (see General Construction Law § 25-a).