Movants bring this motion seeking permission to file a late claim. Defendant
The proposed claim alleges that on May 12, 2004, Sharon LeBeau was in the
elevator in the State Office Building located at 333 East Washington Street,
Syracuse, when the elevator malfunctioned and fell striking the bottom of the
shaft. Movants allege that the State had notice of the defective condition and
failed to install a proper device to prevent the elevator from suddenly falling.
As a result Movant, Sharon LeBeau, suffered injuries. Movant, David
LeBeau’s, claim is derivative and he seeks damages for loss of
Court of Claims Act § 10(6) allows a claimant who has failed to timely
serve a notice of intention or who has failed to file and timely serve a claim
within the time frame set forth in Court of Claims Act § 10 to make an
application to the Court to file such a claim, in the discretion of the Court,
at any time before an action asserting a like claim against a citizen of the
State would be barred under article two of the CPLR (Court of Claims Act §
10). Movants’ motion was timely filed and served (Court of Claims Act
§ 10; CPLR § 214).
Court of Claims Act § 10(6) requires that the Court in deciding an
application for permission to file a late claim give consideration to six
factors: (1) whether there is a reasonable excuse for the delay in filing the
claim; (2) whether the State had notice of the essential facts constituting the
claim; (3) whether the State had an opportunity to investigate the circumstances
underlying the claim; (4) whether the claim appears to be meritorious; (5)
whether the failure to file or serve a timely claim or serve a notice of
intention resulted in substantial prejudice to the state; (6) whether there is
any other available remedy and any other relevant factors. There is no one
factor that is determinative, rather it is a balancing of all of the factors
that may warrant granting the application (Bay Terrace Cooperative Section
IV, Inc. v New York State Employees’ Retirement System, Policemen’s
and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New
York, 207 AD2d 965).
The first factor is whether the delay in filing the claim is excusable.
Movant, Sharon LeBeau, asserts that the delay is excusable because of the
uncertainty of her medical condition. Her response does not address what
prevented her from timely filing and serving a claim. Nor does her response
address why it took her almost a year to bring this application after the time
to file and serve the claim expired. Movant, David LeBeau, had no excuse. This
factor weighs against granting Movants permission to file a late claim.
The factors of whether the State had notice of the essential facts, an
opportunity to investigate the underlying claim, and whether the State will
suffer substantial prejudice if the late filing and serving of the claim are
permitted will all be addressed together. Defendant acknowledges that it
received a timely notice of intention in this matter. The notice of intention
adequately describes the time, place, and circumstances surrounding the proposed
claim. As a result, Defendant had notice and an opportunity to investigate the
underlying facts of the claim. With notice and the opportunity to investigate,
the State will suffer no prejudice if this application is granted. These
factors weigh in favor of granting Movants’ application.
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. A proposed claim meets this standard if it is
not patently groundless, frivolous, or legally defective, and upon consideration
of the entire record, there is cause to believe that a valid cause of action
exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d
1,11). Reading Movant, Sharon LeBeau’s affidavit and supporting
documents, she has met this minimal burden. As a result, at this juncture,
this factor weighs in favor of Movants’ application.
The final factor is whether the Movants have any other available remedy.
Defendant raises the point that Movants can sue the elevator maintenance company
responsible for maintaining and servicing the elevators in the State Office
Building. This information was provided to Movants’ prior attorney in
correspondence from the State dated June 7, 2004. This factor weighs against
granting Movants’ application.
Accordingly, upon balancing all of the factors in Court of Claims Act §
10(6), this Court GRANTS the Movants’ motion to permit the late filing and
serving of the proposed claim against the State. Movants should pay the
required filing fee, and file and serve a properly verified claim in accordance
with Court of Claims Act §§ 10 and 11 and all other applicable
statutes and Court Rules within 45 days of the date this Decision and Order is
filed with the Clerk of the Court.
The Court has considered the following documents in deciding this motion:
Affidavit of Sharon LeBeau, in support, with exhibits attached
Affirmation of Michael R. O’Neill, Esquire, Assistant Attorney
General, with exhibits attached