New York State Court of Claims

New York State Court of Claims

WILLETTS v. THE STATE OF NEW YORK, #2007-015-165, Claim No. NONE, Motion No. M-72726


Movants sought late claim relief in their individual capacity and on behalf of their allegedly disabled son. Absent evidence that son suffered from qualifying disability, determination of the applicability of the tolling provisions, and the need for late claim relief on behalf of the disabled son count not be made. Motion for late claim relief was denied as necessary criteria to support the application was not met.

Case Information

JOHN F. WILLETTS, II and TINA LUPO, Individually and as Parents and Natural Guardians of JOHN F. WILLETTS, III
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Robert J. Chauvin, EsquireBy: Richard E. Wendling, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants seek permission to late file a claim alleging the defendant was negligent in its supervision of a resident at the Oswald D. Heck Developmental Center. The proposed claim alleges that John F. Willetts, III, "was and is a mentally disabled person in the care and custody of the Respondents, residing at the Oswald D. Heck Developmental Center" (see ¶ 4 of the proposed claim). The proposed claim alleges further that "during the afternoon hours of July 22, 2006, another resident who was to be continually watched, observed, controlled, maintained, and/or otherwise supervised, was allowed to roam and be free, and at that time did attack Claimant, John F. Willetts, III, kicking him in the face, while Claimant was sleeping on a couch inside of said facility" (see ¶ 9 of proposed claim). Movants argue that late claim relief is unnecessary with respect to the alleged mentally disabled movant John F. Willetts, III, the victim of the assault, as he was under a qualifying disability at the time the cause of action arose for purposes of the tolling provisions contained in Court of Claims Act § 10(5) and CPLR 208 (see Boland v State of New York, 30 NY2d 337 [1972]; O’Reilly v State of New York, Ct Cl, April 18, 2005 [Claim No. None, Motion No. M-69603, UID # 2005-032-035] Hard, J., unreported[2]; Murtiff v State of New York, Ct Cl, August 20, 2003, [Claim No. None, Motion No. M-66652; UID 2003-031-058] Minarik, J., unreported).

CPLR 208 provides that where a person entitled to commence an action is under a disability because of “infancy” or “insanity” at the time a cause of action accrues, the time for commencement of an action shall, with some limitations, be extended by the period of disability. Although insanity has been held to include mental retardation (see Kelly v Solvay Union Free School Dist., 116 AD2d 1006 [1986]) or other mental disability (Lynch v Carlozzi, 284 AD2d 865 [2001]), to invoke the benefit of the toll more than a conclusory allegation that such a disability exists is required. The Court of Appeals has cautioned that the class of persons entitled to assert the toll for insanity must be narrowly interpreted to include “ only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” (McCarthy v Volkswagen of Amer., 55 NY2d 543, 548 [1982]; see also Santana v Union Hosp. of Bronx, 300 AD2d 56 [2002]; Scott v K-Mart Store No. 3366, 144 AD2d 958 [1988]).

Court of Claims Act § 10 (5) provides that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed". Here, however, movants' conclusory allegation that "John F. Willetts, III, was and is a mentally disabled person in the care and custody of the Respondents" is insufficient to overcome the presumption of a claimant's competency (cf. Boland v State of New York, supra, [involuntary commitment to mental institution pursuant to statute was sufficient to overcome the presumption of competency]). Since movants have failed to submit any evidence supporting the allegation that John F. Willetts, III suffers from a mental disability within the meaning of the tolling statutes, the motion for late claim relief must be decided as to all three movants.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "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".

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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 the proposed claim asserts a negligence cause of action, the three year statute of limitations set forth in CPLR § 214 applies. Movants' motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the movants for the failure to timely serve and file a claim is that there is an ongoing investigation into the facts and circumstances of the claim. In addition, movants' counsel asserts in his affidavit that his firm was not consulted until after the 90-day time period in which to file the claim expired. The Court views the movants' counsel's conclusory and unsubstantiated claim of an ongoing investigation to be an unacceptable excuse for the delay in complying with the time requirements of the Court of Claims Act. Notably absent from the moving papers is any indication of the nature of the investigation, the results of the investigation or when sufficient facts were obtained to enable the movants to identify the State as a potential defendant and draft a claim against it. This factor weighs against the movants' application.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movants assert that the State was aware of the assault shortly after it occurred as evidenced by the fact that the victim was transported by ambulance to the hospital two days later. "The statute refers to notice of 'the facts constituting the claim,' which has been held to mean that the State must be aware that there will be – or is likely to be – litigation in the future" (Barrett v State of New York, Ct Cl, June 30, 2000 [Claim No. None, Motion No. M-60959, UID # 2000-001-036] Read, J., unreported citing Block v New York State Thruway Auth., 69 AD2d 930 [1979]). Movants offer no proof that the State was aware of the likelihood of future litigation or that it conducted an investigation or had a reasonable opportunity to conduct an investigation while the facts were still fresh. The factors of notice, opportunity to investigate and prejudice weigh against granting the motion.

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184(A) [2006]).

It is well established that a hospital or other residential care facility has a duty to "safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety" (N.X. v Cabrini Medical Center, 97 NY2d 247 [2002], citing Morris v Lenox Hill Hosp., 232 AD2d 184, 185 [1996], affd 90 NY2d 953 [1997]). The owner of such a facility is not, however, an insurer of the safety of its residents or otherwise required to keep each patient under constant observation (Killeen v State of New York, 66 NY2d 850, 851 [1985]). A claim for negligent supervision must be supported by evidence that the defendant had notice of the assailant's violent tendencies or that it otherwise deviated from a relevant industry standard of supervision (Hranek v United Methodist Homes of the Wyo. Conference, 27 AD3d 879, 881 [2006]; Rodriguez v Terence Cardinal Cooke Health Care Ctr., 4 AD3d 147 [2004], lv. denied 4 NY3d 703 [2005]; Whidbee v State of New York, 176 AD2d 798 [1991], lv. denied 80 NY2d 752 [1992]; Clinton v City of New York, 140 AD2d 404 [1988], lv. denied 73 NY2d 703 [1988]). Here, the conclusory allegation that the State was required to keep the assailant under constant observation is unsupported (see Killeen v State of New York, supra) and there is not even the allegation that the State had notice of the assailant's violent tendencies or that it otherwise deviated from a relevant industry standard of supervision. A general allegation of negligence unsupported by factual detail is insufficient to establish a meritorious cause of action (Witko v State of New York, 212 AD2d 889, 891 [1995]). Movants have therefore failed to establish that there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana, supra). The absence of apparent merit weighs against the movants on this application.
The parties failed to address the final factor to be considered, the existence of an alternative remedy. It does not appear, however, that a lawsuit against the assailant is necessarily foreclosed.

Based on the foregoing, the motion for late claim relief is denied.

March 30, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 22, 2006;
  2. Affidavit of Richard E. Wendling sworn to December 21, 2006 with exhibit;
  3. Affirmation of Michael T. Krenrich dated January 12, 2007.

[2].Unreported decisions from the Court of Claims are available via the internet at .