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
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
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
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.)
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.
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