New York State Court of Claims

New York State Court of Claims

WORDEN v. THE STATE OF NEW YORK, #2007-042-527, Claim No. None, Motion No. M-73912


Synopsis


Claimant brings this motion before the Court for an order pursuant to Court of Claims Act § 10 (6), permitting claimant to serve and file a late claim. The Court reviewed claimant’s submissions and is satisfied that the requested relief is appropriate in this case. In addition, the State does not oppose the motion, the application is timely brought and the State had notice and opportunity to investigate. Claimant’s motion is granted.

Case Information

UID:
2007-042-527
Claimant(s):
CASSANDRA WORDEN
Claimant short name:
WORDEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73912
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
BOTTAR LEONE, PLLCBy: MICHAEL A. BOTTAR, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order, pursuant to Court of Claims Act § 10 (6), permitting claimant to serve and file a late claim. The court has considered the following papers:
  1. Notice of Motion, filed August 30, 2007
  2. Affidavit of Michael A. Bottar, Esq., sworn to August 27, 2007
  3. Affidavit of Cassandra Worden, sworn to August 10, 2007
  4. Proposed claim dated August 30, 2007
  5. Stipulation and Order, filed October 11, 2007
  6. Letter from G. Lawrence Dillon, Esq., Assistant Attorney General, dated November 8, 2007
_____________________________________

This matter comes before the court on a motion by the claimant for an order, pursuant to Court of Claims Act § 10 (6), permitting claimant to serve and file a late claim. On September 28, 2006 claimant, then a student at the State University of New York at Morrisville College (“SUNY Morrisville”) allegedly was seriously injured while working inside a barn within the Dairy Complex, when a barn gate, which had been struck by another student while operating a “bobcat or skidsteer” hit the claimant. Claimant states that “student managers” responsible for supervising the Dairy Complex were called to the barn; claimant was transported by one of these managers to the Community Memorial Hospital in Hamilton, New York and thereafter transferred to SUNY Upstate Medical University for treatment. It is also alleged that while at Community Memorial Hospital, claimant was visited by one or more of her dairy science professors and/or teachers, to whom she explained what had occurred. Based upon subsequent changes in procedures, claimant assumes that SUNY Morrisville investigated the occurrence.
Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . . , the court shall 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.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, Sise, P.J.

Having reviewed the claimant’s submissions and considered them in the light of the statutory factors applicable to a motion for permission to file a late claim, the court is satisfied that the requested relief is appropriate in this case.

In particular, it is worth noting that the State does not oppose the motion, the application is timely brought, the State had notice and opportunity to investigate, and the claim appears to be meritorious.

Accordingly, claimant’s motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve a Claim upon the Attorney General and to file same with proof of service, with the Chief Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§10, 11, 11-a and the Uniform Rules for the Court of Claims at 22 NYCRR §206.1 et seq., including 22 NYCRR § 206.5-b.



January 24, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims