New York State Court of Claims

New York State Court of Claims

PRENDERGAST v. THE STATE OF NEW YORK, #2007-040-043, , Motion No. M-73542


Synopsis


Motion to file a late claim § 10(6) – granted. Inmate burned by boiling water while cleaning pot in CF kitchen. Alleges unsafe workplace and improper supervision.

Case Information

UID:
2007-040-043
Claimant(s):
JOHN PRENDERGAST
Claimant short name:
PRENDERGAST
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73542
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Andrew F. Plasse, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movant, John Prendergast, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.

The proposed claim, attached to the motion papers, asserts that, on May 8, 2004 at approximately 8:00 a.m., Movant, an inmate, was working in the kitchen at Coxsackie Correctional Facility in West Coxsackie. It asserts that Movant was cooking pasta with another inmate and that, when it was time to drain the water from the pasta, which was in a large kettle, the water would not drain. The proposed claim asserts that Movant had been previously instructed to open a valve in the kettle while the other inmate placed a paddle handle into the kettle to unblock the starchy buildup in the valve. The inmates followed this procedure and, when the other inmate removed the handle, boiling water rushed out of the valve, burning Movant’s foot. It is asserted that this method of cleaning the kettle was dangerous and unsafe. It is further alleged that the State failed to provide Movant with a safe workplace, and proper cleaning and protective equipment, and that it negligently supervised his work.

In order for an application seeking permission to file a late claim to be considered by the Court, it must be made at a time “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act §10[6]). Here, the three-year statute of limitations for negligence began to run on May 8, 2004 and this application was made when the motion was served on Defendant on May 4, 2007 ( Jenkins v State of New York, 119 Misc 2d 144, 145 [Ct Cl 1983]; see Matteo v State of New York, 203 Misc 523, 524-525 [Ct Cl 1952]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C2211:4) and, thus, is timely. The Court acquired jurisdiction of the motion at the time of service and may grant permission to file a claim subsequent to the expiration of the statute of limitations, the permission and filing being deemed as of the date of service of the motion (Thompson v State of New York, 258 App Div 758 [3d Dept 1939]; Johnson v State of New York, 131 Misc 2d 630 [Ct Cl 1986]; Jenkins v State of New York, supra). A claim cannot become time barred while the Court is deliberating upon a motion, timely made, to permit the late filing of a claim (Rydeberg v State of New York, 108 Misc 2d 362, 363 [Ct Cl 1981]).

In determining whether to grant a motion to file a late claim, § 10(6) of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in filing the claim, which is not directly stated, but implied – ignorance of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [2006 NY Slip Op 51399U] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant does not claim lack of notice. Defense counsel asserts that “Defendant may suffer prejudice” because its “ability to perform a timely, appropriate investigation and identify and obtain accurate statements or information from all witnesses may be impeded” by the passage of time (McGown Affirmation in Opposition, ¶ 9). The State has not submitted any documents or an affidavit, however, from an employee to establish that the State did not have notice of the facts, or an opportunity to investigate the matter (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Fowx v State of New York, supra). The statute only requires that the Court consider whether the State had an opportunity to investigate the matter, not whether the State did, indeed, perform an investigation. Movant submitted a copy of a Notice of Intention to File a Claim (see Ex. C attached to Motion) as well as a receipt that is asserted to evidence service of such notice upon the Attorney General on August 18, 2004 (see Ex. D attached to Motion). In addition, Movant has submitted copies of his ambulatory health records relating to the instant accident (see Ex. E attached to Motion). Finally, Movant filed a previous motion seeking permission to file a late claim that was the subject of a decision and order (see Prendergast v State of New York, Ct Cl, October 4, 2005, Sise, P.J., Claim No. None, Motion No. M-69925 [UID No. 2005-028-558]. The Court finds that the State may have had an opportunity to investigate. Despite State’s counsel’s conclusory assertion that the State may be prejudiced by the delay in filing a claim, the Court cannot determine, based upon the evidence submitted on this motion, that the State will be substantially prejudiced as set forth in Court of Claims Act § 10(6). Defendant cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023 [1978]). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that the proposed claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, supra; Plate v State of New York, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this decision and order, Movant shall file with the Clerk of the Court his proposed claim against the State, and serve a copy of the proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

September 12, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Movant’s application for permission to file a late claim:
Papers Numbered


Notice of Motion, Affirmation
Proposed Claim & Exhibits attached 1

Affirmation in Opposition 2