New York State Court of Claims

New York State Court of Claims



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):

James H. Ferreira
Claimant’s attorney:
Martin Bier, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


During June 2007, Martin Bier (hereinafter movant) brought a claim in the Small Claims Part of the Johnsburg Town Court seeking damages for injuries allegedly sustained at the Gore Mountain Ski Center on April 6, 2007. By letter dated July 17, 2007, the New York State Office of the Attorney General submitted a memorandum of law in opposition to movant’s small claim on the ground that the Johnsburg Town Court lacks jurisdiction of the claim. Movant now seeks an order from this Court granting him permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion on the grounds that the claim does not appear to have merit and that movant assumed the risks associated with skiing, “including the risks associated with loading and unloading from a chair lift (sic) .”

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]).

“No single factor is deemed controlling, as the presence or absence of any one factor is not determinative” (Matter of Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). “One of the factors to be considered is whether the claim has the appearance of merit, 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” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]. “In order for a claim to ‘appear 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, including the proposed claim and any affidavits or exhibits, 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, 11 [1977]).

Based upon the foregoing principles, the Court concludes that movant shall be permitted to file a late claim. Initially, the Court finds that the motion is timely as it was made prior to expiration of the applicable three-year Statute of Limitations for negligence actions (see Court of Claims Act § 10 [6]; CPLR 214). The Court further finds that, while movant’s papers do not present an abundance of information, the entire record before the Court is sufficient to establish reasonable cause to believe that a valid cause of action exists and that defendant had adequate notice of the essential facts. In his supporting affidavit, movant states that while he was “skiing an expert course on a Gore Mountain . . . [he] went to load up on the StraightBrook quad and . . . due to loading attendant failure, [he] experienced a sharp blow to [his] head.” The proposed claim further provides that “[t]he loading attendant on duty on the StraightBrook chair lift did not ensure that the loading bar was in its upright position causing a severe blow to [movant’s] head when [he] attempted to load onto the lift.” The foregoing allegations are sufficient to apprise defendant of the location of the accident, the nature of the breach of duty and the proximate cause of movant’s injuries.

In addition to the foregoing, the Court finds that defendant had an adequate opportunity to investigate the claim. During June 2007, the ski center received a copy of movant’s notice of a small claim in Johnsburg Town Court, and during July 2007, defendant became aware of the alleged circumstances through its involvement in the town court matter. Notably, defendant does not contend that it has not had an adequate opportunity to investigate the circumstances underlying the proposed claim, nor does defendant aver that it has suffered substantial prejudice by movant’s failure to file a timely claim.

Thus, after weighing the above factors, including the apparent absence of any other available remedy at law, the Court opts to exercise its discretion in favor of movant and permit him to file a late claim. The Court opts to do so in spite of movant’s less than satisfactory excuse for his delay in filing a claim. Additionally, the Court is not persuaded at this early stage of the proceeding by defendant’s argument that movant assumed the risks associated with skiing, including those inherent in loading and unloading from a chair lift. While “there is undoubtedly some risk of injury inherent in entering, riding and exiting from a chair lift at a ski resort . . . the latter is not of such magnitude as to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed” (Morgan v Ski Roundtop, Inc., 290 AD2d 618, 620 [2002]).

Accordingly, it is hereby ordered that M-73823 is granted and claimant is directed to file and serve the proposed claim within 20 days from the filing date of this decision and order.

January 29, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated July 25, 2007;
  2. Affidavit of Support by Martin Bier sworn to on July 26, 2007 with exhibits;
  3. Affirmation in Opposition by Paul F. Cagino, AAG dated August 16, 2007; and
  4. Reply Affidavit by Martin Bier sworn to on August 21, 2007 with exhibit.