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). 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
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
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
. 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
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.