New York State Court of Claims

New York State Court of Claims

DARMETKO v. THE STATE OF NEW YORK, #2007-013-040, , Motion Nos. M-73698, CM-73923


Inmate claimant's late claim application for a slip and fall on snow and ice. It is unlikely that DOCS employees would memorialize legal theories or conclusions of the Defendant's negligence in inmate injury or incident reports. Conversely, the nearly contemporaneous photographs of the walkway reflect notice of the essential facts underlying the claim, the initiation of an investigation, and anticipate the potential of future legal action. Claimant satisfied the requisite standard of showing the appearance of meritoriousness. Motion granted.

Case Information

1 1.Claimant’s papers, including the proposed claim, name the State of New York as well as the Department of Correctional Services as Defendants. The caption has been corrected sua sponte to reflect the only proper defendant, the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Claimant’s papers, including the proposed claim, name the State of New York as well as the Department of Correctional Services as Defendants. The caption has been corrected sua sponte to reflect the only proper defendant, the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On September 19, 2007, the following papers were read on motion by Claimant for permission to file a late claim, and on cross-motion by Defendant to file revised opposing papers:

Notice of Motion, Affirmation, Affidavit and Exhibits Annexed

Notice of Cross-Motion; Affirmation and Exhibits Annexed

Reply Affirmation

Upon the foregoing papers, the cross-motion to file revised opposition papers is granted, and the motion is granted.

This is a motion seeking permission to file a late claim pursuant to Court of Claims Act §10(6). Claimant Carolyn Darmetko was an inmate at Albion Correctional Facility in the early morning of November 25, 2005, when she slipped and fell on a walkway and allegedly sustained a severely fractured hip which required surgery. The verified proposed claim alleges negligence on the part of the Defendant. This motion was commenced by personal service on July 3, 2007, and thus the application is timely under the provisions of article two of the CPLR.

Before I proceed to the substance of this motion, I address first the Defendant’s cross-motion seeking to withdraw its original opposing papers and substitute revised papers, including certain photographs which previously were not able to be located. Claimant’s counsel commended Defendant’s counsel for highly professional conduct. It is somewhat disconcerting to think that such ethical conduct might not be the norm in other courts or venues, but it is nothing less than that which I have come to expect from the Defendant, from Mr. Gelormini personally, as well as from his colleagues in the Claims Bureau of the Rochester Regional Office of the Attorney General. The cross-motion is granted.

Late claim applications are subject to the Court’s discretion upon consideration, among other factors, of the six enumerated in Section 10(6), to wit, 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. I consider each seriatim.

Claimant’s proffered excuse for the failure to have timely served a claim or notice of intention to file a claim within 90 days following accrual of the cause of action on November 25, 2005, is her concern that as an inmate she might be subject to potential retaliation if she filed a claim while in prison, and moreover that she was being considered for parole at that time and “wished for those proceedings to be completed without difficulty.” Whether such apprehension is rational or has any basis in fact, or, as counsel suggests, such concern was understandable, is dehors the record and is without any arguable or documented support. This factor weighs against Claimant. Regardless, the presence or absence of any particular factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979).

The next factors, whether the State had notice of the essential facts constituting the claim and the opportunity to investigate the circumstances are considered together. The proposed claim contends that Claimant was walking on a walkway from the C2S dormitory to the Administration Building at Albion Correctional Facility when she fell. She notes that there had been a recent snowfall and the walkway “had been somewhat shoveled” by inmates. She contends that she slipped on ice that had been covered by windblown snow that morning. She contends that the walkway was not sanded or salted. Claimant avers, without contravention, that after she fell she was assisted to the Administration Building where she reported the accident to the administrative officer and was then was examined by facility medical personnel and was eventually transported to outside hospitals, ultimately having surgery on her hip.

Claimant contends that prison personnel promptly investigated the facts and circumstances of her accident. She appends, as Exhibit B to her motion, an inmate injury report and a memorandum both dated on the day of the accident, and an unusual incident report signed by the Albion Superintendent on December 1, 2005. The Defendant questions whether these supply the notice and investigatory opportunity contemplated by the statute, as none indicates that the Defendant’s negligence was a factor in the incident. The statute requires notice of the essential facts and the opportunity to investigate the circumstances underlying the claim. Whether these reports suffice to have placed the Defendant on notice of the possibility of legal action (cf. Allen v State of NewYork, UID #2001-013-032, Claim No. 103513, Motion No. M-63467, Dec. 31, 2001, Patti J.)[2] is somewhat inferential. It would hardly be likely that the Defendant’s employees would memorialize legal conclusions of negligence in written reports of an incident, nor would the Court be bound thereby. Additionally, it bears repeating that the Claimant, like all inmates, is under the total and complete control of the Defendant at all times.

Moreover, as Claimant notes, it is somewhat ironic that the photographs supplied by Defendant as part of its cross-motion (Exhibit 2, appended to Fire and Safety Officer Fitzsimmon’s affidavit) and which were taken almost immediately after the accident, demonstrate not only notice of the essential facts underlying the claim, but a nearly contemporaneous investigation of the facts and circumstances constituting the claim, certainly satisfying the statutory requirement that there be a timely opportunity to investigate. Indeed, were not these photographs taken and retained to memorialize the weather and walkway conditions in the event of future legal action? These factors inure to Claimant’s benefit. There has been no showing that granting this application would prejudice the Defendant, let alone reach the standard of substantial prejudice articulated in the statute. Similarly, from the papers before me it appears that Claimant's only remedy for the matters asserted in the proposed claim is in an action against the State in the Court of Claims.

Last I consider the most significant factor, the appearance of meritoriousness of the proposed claim. The proposed claim alleges the Defendant’s negligence relating to the alleged ice and slippery condition of the walkway where Claimant slipped and fell. There are questions extant, inter alia, with respect to whether there was a storm in progress, whether there was actual or constructive notice of a dangerous condition, whether the shoveling of the walkway made it more dangerous, what the temperature was at the time of the accident, at what time of day did the purported one inch of snow fall on November 25, 2005, etc.[3] There is an interesting contrast between Claimant’s assertion that the sidewalk in question had not been salted or sanded with the observation of Fire and Safety Officer Fitzsimmons that from his review of the photographs and experience,“the walkway shows evidence of having been salted” (¶11 of his affidavit, Exhibit 2 to the cross-motion). The Defendant also raises the possible culpable conduct of the Claimant, particularly as the two fellow inmates who assisted her after she fell had been able to traverse the same walkway without falling themselves. All of these issues can be resolved after discovery in a motion for summary judgment or after a trial, and clearly Claimant has a heavy burden to establish the Defendant’s negligence, but the standard which I must apply is whether the proposed claim has the appearance of meritoriousness. Generally, a claimant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). As noted by Claimant, the case law proffered by the Defendant addresses dismissals of snow and ice claims notably on summary judgment motions or after trials on the merits, not when considering a late claim application and the lesser standard described in Santana. I find that the proposed claim has the appearance of meritoriousness.

After due consideration of the papers before me and review of the statutory factors and the proposed claim, I deem it a provident exercise of my discretion to permit the filing of the proposed claim herein, amended to remove references to the putative and improperly named defendant New York State Department of Corrections, within 30 days of service of a file-stamped copy of this order. Therefore both the motion and cross-motion are granted in accordance with the above.

November 13, 2007
Rochester, New York

Judge of the Court of Claims

Decisions and selected orders of the New York State Court of Claims are available on the Internet at
[3]. Page 33 of Exhibit 1 to the cross-motion