New York State Court of Claims

New York State Court of Claims

McDANIEL v. THE STATE OF NEW YORK, #2007-015-249, Claim No. NONE, Motion No. M-73456


Pro se inmate's motion to file a late claim regarding injuries allegedly sustained during the course of evacuating the mess hall following the discharge of tear gas 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:
Timothy McDaniel, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 29, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, an inmate acting pro se, seeks late claim relief pursuant to Court of Claims Act § 10 (6). The proposed claim seeks damages for injuries allegedly sustained in a slip and fall accident which occurred on May 19, 2006 during the course of evacuating the mess hall at the Great Meadow Correctional Facility following the release of tear gas. The movant alleges in pertinent part the following:
I was second to last to evacuate and officer girald shut the door in my face as i was telling him i can't breath or see. So, i walked out and i was trying to find my way out to the gates to go out inmates were runing pushing to find their way out i sliped on something wet and fell backward on a metal table and stool and injured my neck and my upper back on both sides. I was pick up by inmate T. Paul and he help me out to the yard. Officer girald was allowed to evacuate through a safer route and i was trying to tell him i was in danger i was banging on the door and he just left me to die [sic].

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. Movant's application 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 [1994]). 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]).

Movant asserts that the delay in filing the claim was due to the fact that he is not a lawyer and that as a result of the injuries received during the incident he was unable to access either legal counsel or the law library during the statutory period. The Court finds these conclusory assertions unsupported by any proof of the nature of the injuries sustained to be inadequate for purposes of establishing that the delay in filing the claim was excusable (see Cabral v State of New York, 149 AD2d 453 [1989]). Additionally, to the extent movant seeks refuge in the fact that he is not a lawyer, it is settled that ignorance of the law is not a reasonable excuse for the failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948 [2006]). The lack of a reasonable excuse weighs against the movant in determining this motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant avers that immediately after the incident he was treated by medical personnel in the prison dispensary and that the State therefore had notice of the incident and an opportunity to investigate how it occurred. Movant also submitted in support of his late claim application a copy of a grievance filed on May 31, 2006 which asserts that he and other inmates were forced to evacuate the premises through the mess hall where the tear gas had been released while the correction officer present evacuated safely through the kitchen door. He states in this grievance that during this evacuation process he was caused to slip and fall on something wet causing the injuries for which he now seeks to make a claim.

The State avers in opposition to this motion, that the movant's delay in filing a claim has "effectively hamstrung" its investigation of this matter as witnesses' memories fade with the passage of time. The State failed to set forth to what extent, if any, the defendant has investigated this incident and the conclusory assertion that its ability to investigate the matter has been compromised is insufficient to establish prejudice. As a result, the Court finds that the issues of notice, opportunity to investigate and lack of prejudice have been sufficiently established by the movant for purposes of the instant 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 1,11 [1977]). Here, the facts alleged give rise to a cognizable claim of negligence regarding the manner in which the premises were evacuated and whether the risk of injury to the movant was a foreseeable consequence thereof (see Taieb v Hilton Hotels Corp., 131 AD2d 257 [1987], appeal dismissed 72 NY2d 1040 [1988]).

As to the final factor to be considered, it appears that no alternative remedy exists.

Consideration of the factors set forth above leads the Court to the conclusion that it would be a proper exercise of discretion to allow the claim to proceed. The application is granted and the movant is directed to file and serve a claim, in the form proposed, within 45 days of the date on which this decision and order is filed.

October 29, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Undated notice of motion with exhibit filed May 7, 2007;
  2. Affirmation of Michael T. Krenrich dated June 12, 2007;
  3. Affidavit of Service of Timothy McDaniel sworn to August 26, 2007;
  4. Undated "Affirmation" of Timothy McDaniel filed September 6, 2007 with exhibit.