New York State Court of Claims

New York State Court of Claims

ACEVEDO v. THE STATE OF NEW YORK, #2007-016-009, Claim No. 112442, Motion No. M-72732


Synopsis



Case Information

UID:
2007-016-009
Claimant(s):
FRANCISCO ACEVEDO
Claimant short name:
ACEVEDO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112442
Motion number(s):
M-72732
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Adam M. Thompson, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 6, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In claim no. 112442, Francisco Acevedo alleged that because of defendant’s negligence, he slipped and fell at Riverbank State Park on March 28, 2006. Such claim was dismissed in a November 8, 2006 Decision and Order on motion no. M-71953 because it failed to adequately describe the location of the accident for purposes of §11.b of the Court of Claims Act (the “Act”). Mr. Acevedo now moves for leave to reargue or, in the alternative, for permission to file an amended claim or to file a late claim pursuant to §10.6 of the Act. As for claimant’s motion to reargue, he has failed to demonstrate that any matters of fact or law were overlooked or misapprehended by the Court in its determination on motion no. M-71953. See CPLR 2221(d)(2).

With regard to claimant’s motion for permission to file an amended claim, the jurisdictional defect in claim no. 112442 may not be cured by amendment. See, e.g., Grande v State of New York, 160 Misc 2d 383, 609 NYS2d 512 (Ct Cl 1994).

As to the motion for permission to file a late claim, in order to determine such motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). It is undisputed that claim no. 112442 was served within ninety days of accrual and to the extent that it inadequately described the location of the accident, claimant points out that “pictures [were] received by the State without question within days of their first informing Claimant they could not identify the location. Several detailed pictures showing the exact location were again provided to the State.”[2] See the second unnumbered page of the December 7, 2006 affirmation of Adam Thompson, Esq. In any event, defendant raises no argument with regard to these three factors, and I find that they have been met.

With regard to an alternate remedy, it is undisputed that this Court is the sole appropriate venue. As to excuse, claimant has offered no valid explanation for his failure to adequately describe the location in claim no. 112442, which resulted in its dismissal and thus the lack of a timely served and filed viable claim. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The remaining factor to be considered is whether the proposed claim appears meritorious. Defendant points out that both claim no. 112442 and the proposed claim refer to claimant having broken his ankle, whereas claimant’s affidavit[3] on this motion refers to a broken shoulder. Defendant also points out that the incident report prepared that day states that claimant reported that he had injured his left shoulder by accidentally colliding with another player. See exhibit A to the January 9, 2007 affirmation of Ellen Matowik Russell. Such discrepancies will have to be addressed at trial, but for the purposes of this motion, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-72732 be granted to the extent that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with Court of Claims Act §11 and §11-a.

March 6, 2007
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]Claimant’s moving papers on motion no. M-71953 indicate that numerous photos were sent to defendant on July 5, 2006.
  3. [3]Such is entitled “Affirmation of Merit.”
  4. [4]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits 1 through 6; and defendant’s affirmation in opposition with exhibit A.