New York State Court of Claims

New York State Court of Claims

MAGEE v. STATE OF NEW YORK, #2007-039-020, Claim No. 111444, Motion Nos. M-71905, CM-72124


Synopsis


Claimant’s motion for permission to file a late claim is denied, and defendant’s cross motion to dismiss the claim is granted. The Court concludes that claimant failed to offer sufficient proof to establish the claim’s appearance of merit and that the delay in filing the claim was excusable. Claimant’s reliance upon his personal opinion regarding the origin of his fall and the condition of the premises is insufficient. The Court further concludes that it cannot be said that the claim appears to be meritorious in light of defendant’s offer in opposition of affidavits from two witnesses who observed the premises where the accident occurred. Additionally, claimant’s self-serving statements regarding the nature and extent of his injuries, without more, do not constitute sufficient proof to establish that his injury prevented him from serving the notice of intention in a timely manner. Claimant did not provide the Court with a supporting affidavit from a medical provider. Notably, no excuse is offered for claimant’s failure to serve the notice of intention upon defendant within the six weeks following his discharge from the hospital.

Case Information

UID:
2007-039-020
Claimant(s):
CURTIS MAGEE
Claimant short name:
MAGEE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111444
Motion number(s):
M-71905
Cross-motion number(s):
CM-72124
Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Andrew F. Plasse
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen J. MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 14, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Curtis Magee (hereinafter “claimant”) served a notice of intention to file a claim (hereinafter “notice of intention”) on the Attorney General of the State of New York on May 24, 2004 wherein he alleged that on February 14, 2004 he was playing basketball at the Eastern Correctional Facility Annex in Napanoch, New York when he fell and injured his right knee due to an uneven playing surface and potholes on the basketball court. On October 21, 2005, claimant served the related claim upon defendant and issue was joined. Claimant now moves the Court for an order permitting him to serve and file a late claim. Defendant opposes the motion and cross moves for an order dismissing the claim as untimely.

Court of Claims Act § 10 (3) states that a notice of intention to file a claim seeking to recover damages for personal injuries allegedly caused by the negligence of the State must be served upon the Attorney General within 90 days after the accrual of such claim. The failure to timely serve the notice of intention upon the Attorney General is a jurisdictional defect (see Carter v State of New York, 284 AD2d 810 [2001]; Collado v State of New York, 207 AD2d 936 [1994]).

Here, the accrual date as alleged in the notice of intention and the claim is February 14, 2004. Neither party disputes, and sufficient proof was offered to show, that the notice of intention was served upon defendant on May 24, 2004, approximately ten days after expiration of the statutory period. Thus, in view of the strict construction that must be afforded the service requirements of Sections 10 and 11 of the Court of Claims Act, the Court finds that the claim is untimely (see Lurie v State of New York, 73 AD2d 1006, 1007 [1980], affd 52 NY2d 849 [1981]).

The Court further finds that the motion for permission to file a late claim is without merit and, accordingly, the claim must be dismissed. It is well established 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]). A court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’ ” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]).

Court of Claims Act § 10 (6) sets forth the criteria to consider when permission is sought to file a late claim. Specifically, the court shall examine
“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 factors delineated in Section 10 (6) are not exhaustive, and the presence or absence of any one factor is not dispositive or controlling (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 [1982]; Edens v State of New York, 259 AD2d 729, 730 [1999]). Moreover, “as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion,” the Court should first consider whether the claim has merit (Savino v State of New York, 199 AD2d 254, 255 [1993]).

Here, defendant concedes that it had adequate notice and an opportunity to investigate the claim, that the failure to timely file a claim has not resulted in substantial prejudice to the state, and that there are no other available remedies. The Court agrees. Nonetheless, the Court concludes that claimant’s motion must be denied since the claim does not appear to be meritorious and claimant has failed to offer sufficient proof to establish that the delay in filing his claim was excusable.

In order for a claim to be meritorious, it must not be patently groundless, frivolous, or legally defective, and the court must find upon a consideration of the entire record, that there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Where the claim underlying the application for late filing is supported only by the claimant’s personal opinion that the injury would not have occurred had the State not been negligent (see Klingler v State of New York, 213 AD2d 378, 379 [1995]), or where the claims of negligence on the part of the State are conclusory (see Calco v State of New York, 165 AD2d 117, 119 [1991], lv denied 78 NY2d 852 [1991]), the claim will not be deemed to have merit.

In an effort to persuade the Court that the claim has merit, claimant primarily relies upon his personal opinion regarding the origin of his fall and the condition of the basketball court (see Affirmation of Andrew F. Plasse, Esq. at ¶ 19; Affidavit of Curtis Magee). The Court finds that such proof is insufficient to establish that the claim has merit (see Klingler v State of New York, supra). Moreover, in opposition to the motion, defendant offers, among other things, affidavits from two corrections officers who dispute the cause of claimant’s fall. Correction Officer J. Shelmandine states that, on the date of the incident, claimant told him he injured his knee after colliding with another inmate while playing basketball, and that claimant did not state he had tripped over or fallen into a pothole (see Affidavit of New York State Corrections’ Officer J. Shelmandine at ¶ 2). In the course of investigating claimant’s grievance, Correction Officer E.J. Wilhelm states that he did not observe any potholes on the north end of the basketball court where claimant alleges that he fell (see Affidavit of New York State Corrections’ Officer E.J. Wilhelm at ¶ 2). Additionally, the Court notes that the Central Office Review Committee upheld the Superintendent’s determination to deny claimant’s grievance based, in part, upon a finding that claimant initially indicated that he injured his knee when he bumped into another inmate while on the basketball court, and upon an inspection of the basketball court which did not reveal the presence of any hazardous conditions (see Affirmation in Opposition of Stephen J. Maher, Esq. at Exhibit D). Based upon the foregoing, it cannot be said that the claim appears to be meritorious.

The Court further finds that claimant failed to offer sufficient proof to establish that the delay in filing the claim was excusable. Claimant contends, among other things, that “the combination of the nature of his injuries, his extended stay in the infirmary, his inability to go to the law library during his recuperation, and his distress from the injury” contributed to the delay in serving his notice of intention (see Affirmation of Andrew F. Plasse, Esq. at ¶ 8). Claimant offers copies of his medical records which show that he fractured his right patella and injured a tendon, that surgery was performed to repair the injuries and that he remained an inpatient at the infirmary until April 2, 2004 (see Affirmation of Andrew F. Plasse, Esq. at Exhibit C). Claimant offers his own affidavit wherein he states, among other things, that he underwent surgery and was placed in the infirmary until his discharge therefrom on April 2, 2004 (see Affidavit of Curtis Magee at ¶ ¶ 11 and 12). Claimant further avers that “[d]uring most of the time [he] was in the infirmary, [he] had no access to the law library to file a Notice of Intention” (see Affidavit of Curtis Magee at ¶¶ 12 and 13).

The Court recognizes that physical incapacitation may constitute a reasonable excuse in serving an untimely notice of intention or claim (see e.g. Epstein v State of New York, 88 AD2d 967 [1982]; Conroy v State of New York, 192 Misc 2d 71, 73 [Ct Cl 2002]). Here, however, claimant fails to offer sufficient proof to establish that his injury prevented him from serving the notice of intention in a timely manner. Claimant’s self-serving statements regarding the nature and extent of his injuries, without more, are not persuasive (see Brewster v Prince Apts., 264 AD2d 611, 616 [1999], lv denied 94 NY2d 762 [2000]; Suarez v State of New York, 14 Misc 3d 1230 (A), *2 [Ct Cl 2006]). Nor does claimant provide the Court with a supporting affidavit from a medical provider (see e.g. Cabral v State, 149 AD2d 453 [ 1989] [late claim motion denied where only proffer for excuse was conclusory assertion by claimant’s counsel unsupported by a physician’s affidavit]; Carmen v State of New York, 49 AD2d 965, 966 [1975] [record supporting late claim to file included supporting affidavits from two doctors]; Conroy v State of New York, supra at 73] [affirmation from claimant’s treating doctor explaining why claimant was unable to timely file a claim satisfied the excuse factor]). Moreover, even if the Court were to assume that claimant was incapable of serving a timely notice of intention upon defendant during his hospitalization, he was discharged on April 2, 2004, leaving approximately six weeks within the 90 day statutory period for claimant to do so. Notably, no excuse is offered for claimant’s failure to serve the notice of intention upon defendant within the six weeks following his discharge (see Matter of Duffy v State of New York, 264 AD2d 911, 912 [1999]).

Accordingly, it is hereby ordered that M-71905 is denied and CM-72124 is granted.

June 14, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Late Claim filed on June 19, 2006;
  2. Affirmation of Andrew F. Plasse, Esq. affirmed on June 15, 2006, with exhibits;
  3. Affidavit of Curtis Magee, sworn to on February 16, 2006;
  4. Notice of Cross Motion to Dismiss filed on August 9, 2006;
  5. Affirmation in Opposition to Motion to Late File and in Support of Defendant’s Cross Motion to Dismiss affirmed on August 8, 2006, with exhibits;
  6. Affidavit of Sgt. E.J. Wilhelm sworn to on August 2, 2006, with exhibit; and
  7. Affidavit of New York State Corrections Officer J. Shelmandine sworn to on August 2, 2006, with exhibit.