New York State Court of Claims

New York State Court of Claims

LeBeau v. STATE OF NEW YORK, #2007-018-580, Claim No. NONE, Motion No. M-73355


Motion to file late claim is 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:
Defendant’s attorney:
Attorney General of the State of New York
By: MICHAEL R. O’NEILL, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 15, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Movants bring this motion seeking permission to file a late claim. Defendant opposes themotion.

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 consortium.

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[6]). Movants’ motion was timely filed and served (Court of Claims Act § 10[6]; CPLR § 214[5]).

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.

August 15, 2007
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion................................................................................1

Affidavit of Sharon LeBeau, in support, with exhibits attached


Affirmation of Michael R. O’Neill, Esquire, Assistant Attorney

General, with exhibits attached thereto...................................3