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 ). The statutory factors are not exhaustive nor is any one
factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
). 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 ).
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 ).
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 ). 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
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 ). 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 , appeal dismissed 72 NY2d 1040 ).
As to the final factor to be considered, it appears that no alternative remedy
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.