HUNLEY-PETERS v. STATE OF NEW YORK, #2007-018-590, Claim No. NONE, Motion No.
Late claim application and motion for preaction disclosure denied. All of the
factors weighed against granting application - inexcusable 32-month delay, and
report to State Police that movant fell when she exited ride before it stopped
not notice to State of essential facts of claim.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
OSBORN, REED & BURKE, LLPBy: Thomas J. Rzepka, Esquire
ANDREW M. CUOMO
Attorney General of the State of
SKANDALISBy: George Skandalis, Esquire
December 10, 2007
See also (multicaptioned
Movant brings a motion for permission to file a late claim pursuant to Court of
Act § 10(6) and seeks preaction discovery so that she can obtain
information to assist her in bringing an action against a third party.
Defendant strenuously opposes the motion. The Court also heard oral
The proposed claim asserts that on September 5, 2004, at approximately 6:30
p.m., Movant and her granddaughter were riding on a ride known as the
“Tivoli Remix” at the New York State Fair. In the proposed claim,
it is alleged that to get on the ride Movant and her granddaughter were provided
with a stool from the ride attendant; however, when they went to exit the ride,
no stool was provided causing Movant to jump down onto the wet metal decking of
the ride, falling and being injured. Movant alleges that the State was
negligent in the construction, maintenance, and monitoring of the named ride,
and in failing to use reasonable care to provide safety to the members of the
public using the ride.
Court of Claims Act § 10(6) allows a Movant 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).
Claimant’s motion is timely (Court of Claims Act § 10(6); CPLR
To determine whether an application for permission to file a late claim should
be granted, consideration must be given to the six factors listed in Court of
Claims Act § 10(6), and any other relevant factors. The presence or
absence of any one factor is not determinative (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). Instead, it is a balancing
of all of the factors by the Court which may warrant the granting of the
application to file and serve a late claim.
The first factor is whether the delay in filing the claim is excusable.
Movant’s attorney asserts that the reason Movant did not timely file and
serve a claim is because the original injuries she suffered to the middle finger
of her right hand, index finger of her left hand, and an avulsion fracture of
her right wrist all healed, and it was not until her injuries got worse that she
was motivated to pursue legal recourse. This is not a valid excuse (see
Atterbury v State of New York, 26 Misc 2d 422 [severity of injuries need not
be known to serve a notice of intention or to file and serve a claim]);
particularly, since Movant had surgery on January 30, 2006, for a shoulder
injury which she attributes to her fall at the fair, but still did not bring
this motion until almost 16 months later. As a result this factor must weigh
against granting Movant’s application.
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. Following her fall, Movant
immediately presented to the infirmary and a report was prepared. Movant also
states that a report may have been made to the New York State Police.
Defendant acknowledges that an incident log was prepared by the State Police and
a report was made by the infirmary, but argues that neither report provides
notice to the State of the facts underlying the proposed claim. Defendant
argues that neither report identifies the ride, and the report to the State
Police indicates that Movant attempted to exit the ride before it came to a stop
and then fell from the ride. Thus, the reports do not provide the State with
notice of a potential claim, since Movant’s fall was attributed to her
own judgment in exiting the ride prematurely.
Pursuant to Court of Claims Act § 10(6), the notice requirement is
fulfilled when the facts giving rise to the claim have been timely provided to
someone in authority in the department or agency responsible, or to the legal
department, such as the Attorney General (Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1, 7-8). Typically, a report made to a State
Trooper is not considered notice to the State, since the report does not alert
anyone in authority with the particular State department involved in a potential
claim (Matter of Santana, 92 Misc 2d at 7-8; United Services
Automobile Assoc. v State of New York, Ct Cl, unpublished decision of J.
Read, filed January 5, 1999, Claim No. None, Motion No. M-58225). Whether
information provided by a potential claimant to the defendant is notice to the
State also depends upon whether the information provides some indication that
the incident was caused by the State’s negligence (United Services
Automobile Assoc., supra at 5). In this case, the reports to the
infirmary and the State Police reports are provided to the business manager of
the New York State Fair and reviewed by the claims manager for its insurance
company. Even with the described reports, there is nothing in the infirmary
report or police narrative which would suggest negligence on the part of the
State. Without adequate notice of the underlying facts, the State did not have
a meaningful opportunity to investigate this matter. The State also argues that
it will be prejudiced by the 32- month delay in bringing this application.
These factors weigh against granting the application.
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. A potential party seeking to file a late
claim, bears the heavier burden of demonstrating that the proposed claim appears
meritorious (see Witko v State of New York, 212 AD2d 889; Nyberg v
State of New York, 154 Misc 2d 199). Even if the other factors set forth
in Court of Claims Act § 10(6) weigh in favor of granting Movant’s
application, it would be of no benefit to allow a potential claim that lacks
even the appearance of merit (Savino v State of New York, 199 AD2d 254;
Prusack v State of New York, 117 AD2d 729). Generally, this factor is
met if the proposed claim 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, 92 Misc
2d at 1,11).
The State argues that the claim is meritless because it fails to provide the
details of how Movant fell from the ride and that the scant details are evident
from the initial intervention that day at the fair as reflected in the reports
from the infirmary and the State Police. Defendant also argues that the report
of State Trooper Meeker, which reflects that Movant acknowledged that she exited
the ride before it had completely stopped, exposes the absence of a meritorious
After reviewing all of the submissions the Court finds the proposed claim lacks
potential merit. Movant has not alleged the State had any notice of a dangerous
condition. Accordingly, this factor weighs against granting Movant’s
The final factor is whether the proposed Claimant has any other remedy
available. Movant may also have a cause of action against the company directly
responsible for the ride.
Given all of the factors, Movant’s application for permission to file and
serve a late claim is DENIED.
Movant also seeks, by this motion, preaction disclosure to aid in bringing a
separate action against a third party. Movant seeks disclosure of the entities
or person(s) who were responsible for the ride upon which Movant was injured
through depositions or appropriate document discovery.
CPLR 3102(c) governs preaction disclosure and provides that before an action is
commenced, disclosure to aid in bringing an action, to preserve information or
to aid in arbitration may be obtained, but only by court order.
The Court of Claims, however, is a Court of limited jurisdiction having the
authority only to hear claims against the State of New York. Any other entity
would have to be sued in another court. It has been held that courts of
limited jurisdiction also have limited authority to grant preaction disclosure
(see Matter of the Estate of Wallace, 239 AD2d 14, 16; Bowen v
State of New York, Ct Cl, Sise, J., signed March 30, 2007, Claim No. None,
Motion No. M-72771, UID # 2007-028-534; Perez v New York Presbyterian
Hosp., 11 Misc 3d 722)
Since the entities(s) or person(s) Movant seeks to sue are not subject to the
jurisdiction of this Court, the request for preaction disclosure to determine
the identities of these potential parties should be brought in the court which
would have jurisdiction over the action which might ultimately be commenced.
There is no indication that Movant has made any effort to obtain this
information without the intervention of the Court.
Accordingly, for the foregoing reasons, Movant’s motion for preaction
disclosure is DENIED.
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the
Court of Claims
The Court has considered the following documents in deciding this motion:
Affidavit of Thomas J. Rzepka, Esquire, in support, with exhibit
Affidavit of Rosita Hunley-Peters, in support, with exhibit
Affidavit of George Skandalis, Esquire, in opposition with
Affidavit of Richard Guanciale, in
Affidavit of Cindy Allen, in
Affidavit of Daniel J. Olsson, in
Affidavit of Tim Meeker, in
Affidavit of Lawrence R. Flynn, in
Memorandum of Law in opposition by George Skandalis, Esquire....10