New York State Court of Claims

New York State Court of Claims

CALCAGNO v. THE STATE OF NEW YORK, #2007-009-043, Claim No. NONE, Motion No. M-73870


Claimant’s application for permission to serve and file a late claim based upon allegations that she was injured during a concert held on the State Fairgrounds 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):

Claimant’s attorney:
BY; James E. Reid, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a timely[1] motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, Proposed Claim, Affidavit of Vicki Calcagno, with Exhibits 1,2,3,4

Affirmation in Opposition 5

In her proposed claim, claimant seeks damages for personal injuries allegedly suffered by her on August 28, 2004, which occurred during a Rick Springfield concert which was held on the premises of the New York State Fairgrounds. According to her claim, Rick Springfield entered the patron seating area during his performance, and jumped on the backs of chairs, benches and railings in this area. At some point, Mr. Springfield lost his balance and fell on the claimant, knocking her to the ground and allegedly causing her injuries.

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 (see, Matter of Gavigan v State of New York, 176 AD2d 1117), and the presence or absence of any particular factor is not dispositive of any such application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to excuse, claimant states that she was unaware, and was not informed, that a claim had to be served and filed, or a notice of intention had to be served, within 90 days from the date of this incident. Although she consulted with several different attorneys following this incident, she states that she was never informed that she had a potential claim against the State for approximately two years. Nevertheless, it is well settled that ignorance of the law is not an acceptable excuse for the failure to timely serve and file a claim (Matter of E.K. v State of New York, 235 AD2d 540). The Court therefore finds that claimant has failed to establish an acceptable excuse for her failure to timely serve and file her claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. According to her affidavit, when claimant realized the extent of her injuries, she immediately attempted to contact a representative from the State Fair. Approximately one month after the incident, she made contact with Rich Guanciale, the Business Manager at the fair. According to claimant, this representative requested copies of claimant’s medical bills, and allegedly gave assurances to claimant that the fair would assume responsibility for this claim. At some later point in time, after she was unable to resolve this matter with representatives from the fair, she then contacted several attorneys, prior to this late claim application.

Although ignorance of the law does not excuse claimant from timely serving and filing a claim, the Court does find that claimant attempted to timely place the State on notice of a potential claim through her repeated attempts to resolve this matter with a State Fair representative. The Court finds that these attempts constitute sufficient notice to the State of the potential claim, and also provided the State with an adequate opportunity to investigate the facts and circumstances underlying the claim. While the lengthy delay in serving and filing her claim may create some difficulties for the State in locating and contacting potential witnesses, the Court does not find that the State will be substantially prejudiced in its defense of this claim.

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 potential claim based upon allegations of negligence, claimant has alleged that the State, as the owner of the grounds and facility where the Rick Springfield concert was held, failed to exercise proper supervision and control over the concert activities, and that this alleged failure was a proximate cause of the incident which caused claimant’s injuries. For purposes of this late claim application, and based upon the minimal standards set forth in Santana, the Court finds that such allegations are sufficient to establish the appearance of a meritorious cause of action.

As set forth in defendant’s opposition papers, it appears that claimant might have or had other available remedies, such as an action against Rick Springfield individually.

After reviewing all of the papers submitted herein, and 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 her proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-73870 is hereby GRANTED; and claimant is directed to file and serve her proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to 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.

December 19, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. Section 10(6) of the Court of Claims Act permits the filing of a motion seeking late claim relief as long as the motion is 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.” In this case, the incident forming the basis of this claim allegedly occurred on August 28, 2004. Claimant’s motion was filed with the Clerk of the Court of Claims on August 20, 2007, within the three year statute of limitations for negligence claims (CPLR § 214). (Thompson v State of New York, 258 App Div 758; Johnson v State of New York, 131 Misc 2d 630; Jenkins v State of New York, 119 Misc 2d 144).