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
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.