New York State Court of Claims

New York State Court of Claims

FARAGO v. THE STATE OF NEW YORK, #2007-044-597, Claim No. None, Motion No. M-74026


Claimant's motion for permission to file and serve late claim granted, in case where claimant fell on an uncovered metal post in her dormitory room at State university

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):

Claimant’s attorney:
KAGAN & GERTEL, ESQS.BY: Irving Gertel, Esq., of counsel
Defendant’s attorney:
BY: Hiscock & Barclay, LLP Linda J. Clark, Esq., of counsel
Third-party defendant’s attorney:

Signature date:
December 17, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission “to serve and file a late notice of intention to file a claim.”[1] Claimant seeks to recover for personal injuries allegedly received when, as a student at State University of New York at Binghamton (BU), she slipped off a metal bar spanning the foot of the bed in her dormitory room.[2] Defendant State of New York (defendant) opposes the motion. The claim accrued on January 16, 2007, the date of claimant's fall. A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The applicable statute of limitations for negligence is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion filed on September 28, 2007 is timely.

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant asserts that the delay in filing a claim was unintentional both because she thought the documents and reports filed immediately after the accident were sufficient and because she was unfamiliar with the legal requirements. Claimant further states that as soon as she returned to her home (from BU) and learned “that a formal notice of claim was required,” she proceeded to formally request permission from the Court.

Claimant's ignorance of the requirements of the Court of Claims Act is no excuse for her delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Further, claimant’s status as a college student, living away from home and her parents, is similarly insufficient to justify the delay (see e.g. Crawford v City University of New York, 131 Misc 2d 1013, 1016 [1986]). Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. In her affidavit in support of this application, claimant states that before she was transported to the hospital by ambulance, the Residential Assistant (Matt) came to her dormitory room and spoke to her about the accident. Claimant also asserts that after she returned from the hospital, she again spoke with Matt as well as with several other Residential Assistants in the dormitory. Claimant further states that she filed both an accident report and a repair request, and that “[s]ome weeks after [the] accident, a repair man came to [the] dormitory room and covered up the unprotected posts at the foot of [the] bed.”

Claimant reported the accident to several Resident Assistants at BU and completed an accident report, all virtually contemporaneously with the incident. Moreover, and apparently in response to claimant’s request, the bed posts were “repaired”[3] within weeks of the accident. Defendant obviously had notice of the essential facts and an opportunity to investigate, both of which factors weigh in favor of claimant. Defendant does not argue, and the Court has not discerned that the failure to timely file a claim has resulted in any prejudice to the State in its defense of this claim. This factor also weighs in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. The accident took place on defendant’s campus and was caused by an allegedly defective or dangerous object provided to claimant by defendant. Based upon these allegations and the apparent lack of involvement of any third party, the only remedy available to claimant is an action in the Court of Claims. Thus, this factor weighs in favor of claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [1992]).

The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [2000], lv denied 96 NY2d 704 [2001]). Defendant is the owner of the dormitory and provided claimant with the allegedly defective bed.

While defendant argues that there is no allegation of either actual or constructive notice on defendant's part, a reasonable inference may be drawn that the posts were uncovered when the bed was initially provided to claimant. Contrary to defendant’s contentions that the proposed claim is conclusory, claimant has set forth sufficient factual allegations which demonstrate that the claim is not patently groundless, frivolous, or without merit. This factor weighs in favor of claimant.

While claimant’s delay may not have been excusable, the other five factors - including the crucial factor of merit - clearly and substantially weigh in claimant’s favor. Claimant’s motion for permission to file and serve a late claim is hereby granted. Claimant is directed to serve a Claim consistent with the allegations set forth in Exhibit A upon the Attorney General, and to file said claim with proof of service with the Clerk of the Court of Claims, all within 40 days from the date of filing of this Decision and Order.[4] The filing and service of the claim shall be in conformity with all applicable statutes and rules of the Court.

December 17, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on September 28, 2007; Affirmation of Irving Gertel, Esq., dated September 25, 2007, and attached exhibits.

2) Affirmation of Linda J. Clark, Esq. sworn to on October 15, [2007], in opposition to the motion; Memorandum of Law dated October 15, 2007.

[1]. While Court of Claims Act § 10 (6) sets forth the procedure whereby a claimant may request permission from the Court to serve and file a late claim, there is no such equivalent provision whereby a proposed claimant might seek permission to file a late notice of intention. The Court will therefore treat claimant’s motion as one to file and serve a late claim and will conduct the appropriate analysis under Court of Claims Act § 10 (6). The Court notes that counsel for defendant also inaccurately refers to claimant’s motion as one to file and serve a “late Notice of Claim.” Counsel for defendant is apparently confusing the terminology and procedures of the General Municipal Law governing actions against municipalities (where the service of a “Notice of Claim” is often a condition precedent to maintaining an action) with the Court of Claims Act governing claims against the State (where the service and filing of a claim is necessary to invoke the Court’s jurisdiction).
[2]. Claimant alleges that she was required to stand on a metal bar at the foot of her bed to access her closet drawers, and that when she fell from that bar, she struck an uncovered metal post and sustained a severe laceration on her leg which required 40 to 50 sutures.
[3]. The exposed edges of the raw metal post were covered.
[4]. Claimant should note that the caption of the proposed claim must be revised to reflect the State of New York (rather than the Dormitory Authority) as the proper defendant.