New York State Court of Claims

New York State Court of Claims

PAGE v. THE STATE OF NEW YORK, #2007-028-535, Claim No. NONE, Motion No. M-72032


Motion to late file is granted where there is no substantial prejudice to Defendant and the proposed claim has the appearance of merit. A delay in Movant’s realization that her injuries are serious enough to warrant considering a lawsuit could, in appropriate circumstances, present an acceptable excuse for delay.

Case Information

1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Michael J. Pastrick, Esq. and
Kevin A. Lane, Esq.
Third-party defendant’s attorney:

Signature date:
May 4, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on a motion for permission to late file a claim:

1. Notice of Motion and Supporting Affirmation of Martha L. Berry, Esq., with annexed Affidavit of Barbara A. Page and Exhibit (Proposed Claim);

2. Affidavit in Opposition of Michael J. Pastrick, Esq., with annexed Exhibits, together with the Affidavit of George Arnold and Memorandum of Law;

3. Reply Affirmation of Martha L. Berry, Esq., with annexed Exhibit; and

4. Sur Reply Affidavit of Michael J. Pastrick, Esq., with Sur Reply Memorandum of Law;

Filed papers: None

Movant seeks permission, pursuant to Court of Claims Act §10(6), to file an untimely claim. The proposed Claim, which is annexed to the Notice of Motion, alleges that on October 6, 2005, Movant was injured while she attempted to walk down a ramp at Bowman Hall on the campus of the State University of New York at Potsdam (SUNY - Potsdam). At the time of the incident, Movant was employed by PACES, a company that provides dining and food services to the school.

The fall occurred when Movant was walking down the aluminum ramp located near the loading dock at the rear of the building. The ramp, which led from the loading dock and had no railing, was the only method by which someone could go to or from the building at that location. According to Movant, her toe caught at the top of the ramp; she lost her footing; and then she slid or fell down the length of the ramp (Page Affidavit, ¶4). Movant states that she suffered a torn medial meniscus of her right knee, for which surgery was performed in May 2006; a torn rotator cuff, for which surgery was being scheduled; and persistent back pain, for which she has been receiving physical therapy (id. ¶8).

This motion was instituted within the applicable three-year statute of limitations (CPLR 214), and consequently it is timely. Pursuant to Court of Claims Act §10(6), the non-exclusive list of the factors that the Court must consider in determining a motion to late file are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;

5. the failure to commence a timely action resulted in substantial prejudice to the State;

6. the Claimant has any other available remedy.

The Court in the exercise of its discretion balances these factors, along with any other relevant information. As a general proposition, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]), and the Court has broad discretion in deciding whether or not to permit the late filing (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

Movant asserts that she did not take timely action to commence a claim because she was unaware that such a remedy was available and, in a somewhat contradictory statement, because she initially expected her injuries to be minor (Page Affidavit, ¶11). Ignorance of the law is not an acceptable excuse for failing to comply with the time limitations of the Court of Claims Act (Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753 [1992]). With respect to Movant’s alternative reason, however, failure to realize the seriousness of an injury has been accepted as a reasonable excuse for delay on at least one occasion (Callanan v State of New York, 42 Misc 2d 740 [Ct Cl 1964], affd 23 AD2d 937 [3d Dept 1965]) and also in connection with late notice of claim applications made under General Municipal Law § 50-e (see Matter of Greene v Rochester Housing Auth., 273 AD2d 895 [2000]; More v General Brown Cent. School Dist., 262 AD2d 1030 [1999]). For such an excuse to suffice, however, something more than the injured party’s bald assertion is required (see e.g. DeGroff v State of New York, 43 AD2d 993) and there must be prompt action as soon as there is reason to believe the injuries might be serious (Atterbury v State of New York, 26 Misc 2d 422 [Ct Cl 1961]). In the instant situation, Movant has not provided any information about her symptoms, the dates when she first sought medical attention, or the initial diagnoses she was given. It is evident that she was aware of the need for surgery some time before May 2006, when the first procedure was performed, yet she states that she did not consult an attorney until June 2006 (Page Affidavit, ¶11).

The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. The State’s ownership of the ramp is undisputed, but it cannot be assumed the State had actual knowledge of the facts giving rise to the claim and the fact that a claim was likely to be filed merely because it owns and maintains a facility or because an incident report was filed (Turner v State of New York, 40 AD2d 923 [3d Dept 1972]; Wolf v State of New York 140 AD2d 692 [2d Dept 1988]). In any event, there is no indication that a report of this accident was prepared by or for the State, and the fact that, according to Movant, an accident report was prepared by PACES would have no bearing on the State’s notice and opportunity to investigate.

On the other hand, the accident itself was recorded on a surveillance tape, a tape in Defendant’s possession (Pastrick Affidavit, Exhibit E), which can be studied as easily now as it could have been several months ago. With respect to potential witnesses to the accident, the name of Movant’s co-worker, who came to her assistance, is known, and members of the rescue squad could be readily identified. While it is true that it might now be more difficult to locate any other witnesses than if the claim had been commenced more promptly, that is a difficulty that would interfere equally with the ability of both parties to investigate and thus would not place “substantial” prejudice on the Defendant.

Although Movant’s counsel states that there is no other remedy available to her, she has applied for Workers’ Compensation benefits (Pastrick Affidavit, Exhibits B, H). Such benefits are recognized as an alternative remedy (Nicometti v State of New York, 144 AD2d 1036 [4th Dept 1988], lv denied 73 NY2d 710 [1989]) but one that provides only partial relief (Matter of Garguiolo v New York State Thruway Authority, 145 AD2d 915 [4th Dept 1988]; Fowx v State of New York, 12 Misc 3d 1184(A) [Ct Cl 2006]).

Of the six enumerated factors set forth in §10(6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). Unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court’s satisfaction that the proposed claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889 [3d Dept 1995]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). To succeed in meeting this threshold, however, a movant need only establish
that the proposed claim is not patently groundless, frivolous, or legally defective and that 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 [Ct Cl 1977]).
In opposing the instant motion, defense counsel explores, in considerable detail, all of the information provided by the surveillance tape and urges the Court to conclude that the ramp did not constitute an inherently dangerous condition and that the absence of a railing did not contribute to Movant’s injuries (Pastrick Affidavit, ¶ 23). Movant’s counsel counters by arguing that the ramp in question may have been required to have a railing pursuant to the New York Building Code. In making these arguments, both parties are going into far greater depth than is required at this juncture. The allegations of the proposed claim do not set forth a cause of action that is “patently groundless, frivolous, or legally defective,” and since there is no dispute that Movant was injured in a fall that occurred on a ramp for which Defendant is responsible, there is “reasonable cause to believe that a valid cause of action exists.” Determination of whether that cause of action can be proven by a preponderance of the credible evidence should be made after all discovery is completed and fully-developed arguments are made by both counsel.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Movant therefore is directed to file and serve a claim identical to the proposed claim and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

May 4, 2007
Albany, New York

Judge of the Court of Claims