New York State Court of Claims

New York State Court of Claims

DOSS v. STATE OF NEW YORK, #2007-039-018, , Motion No. M-72550


Synopsis


Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10 (6) is denied. Movant failed to offer a reasonable excuse for his delay in filing a claim other than to state that he was unaware of the filing requirements of the Court of Claims Act. The Court is also unable to conclude that defendant had notice of the essential facts constituting the claim or an opportunity to investigate the circumstances underlying the claim. Although a report was made to the park manager, the information provided therein does not suggest any negligence on the part of defendant. Moreover, the passage of time since the date of the alleged incident - more than 1½ years - significantly inhibits defendant’s ability to investigate the matter.

Case Information

UID:
2007-039-018
Claimant(s):
DWIGHT DOSS
Claimant short name:
DOSS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.Caption amended to reflect the State of New York as the only properly named defendant before this Court.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72550
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Law Offices of Charles A. GruenBy: Charles A. Gruen, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Todd A. SchallAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 24, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Dwight Doss (hereinafter movant) seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). Movant alleges in his proposed claim that he sustained serious injuries when his right foot became lodged between two deck planks or caught on a protruding nail while dancing at a wedding reception at The Pavilion at Sunken Meadows, located at the Governor Alfred E. Smith Sunken Meadow State Park in Kings Park, New York. The State of New York (hereinafter the State) opposes the motion.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). When deciding whether to grant an application to file a late claim, the court is required to consider
“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

The Court finds in the first instance that movant fails to offer an excuse for the delay in filing the claim other than to state that he was unaware of the filing requirements pursuant to the Court of Claims Act. “To be sure, ignorance of the law is not an acceptable explanation for the failure to serve a timely notice of claim” (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv dismissed 99 NY2d 589 [2003]).

Moreover, it cannot be said that the State had notice of the essential facts constituting the claim or an opportunity to investigate the circumstances underlying the claim. “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” (Rizzo v State of New York, 2 Misc 3d 829, 832 [Ct Cl 2003]). Here, however, even if the Court were to find that the report made to the park manager constituted notice to the State, the information provided therein does not suggest any negligence on the part of the State (see id.). Additionally, the passage of time since the date of the alleged accident - more than 1½ years - significantly inhibits the State’s ability to investigate this matter.

Accordingly, it is hereby ordered that M-72550 is denied.

September 24, 2007
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Permission to File a Late Claim filed on November 17, 2006;
  2. Affirmation of Counsel dated on November 13, 2006, with exhibit and proposed claim;
  3. Affirmation in Opposition dated on January 31, 2007, with exhibits;
  4. Correspondence dated February 6, 2007 from Todd A. Schall, Esq., with enclosures;
  5. Amended Affirmation in Opposition dated on February 12, 2007, with exhibits; and
  6. Affirmation in Further Support of Claimant’s Motion for Leave to File a Late Claim dated on February 27, 2007.