New York State Court of Claims

New York State Court of Claims

FOSTER v. THE STATE OF NEW YORK, #2008-010-022, Claim No. NONE, Motion No. M-75142


Movant’s application for leave to serve and file a late claim is DENIED.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on movant’s application for leave to serve and file a late claim:
Notice of Motion, Movant’s Supporting Affidavit, Claim/Proposed Claim.............1

Attorney’s Affirmation in Opposition and Exhibit...................................................2

Movant seeks to bring a late claim alleging that on March 18, 2007, movant, an inmate at Sing Sing Correctional Facility, slipped and fell on a snow and ice covered walkway outside the visiting area of the Correctional Facility and that defendant’s negligence in failing to properly maintain the walkway was a contributing cause of movant’s fall. Specifically, movant alleges that a Correction Officer Ramsey directed movant to carry trays over the walkway and that movant slipped and fell, striking his head, losing consciousness and injuring his leg, arm, and back.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Movant’s purported excuse for his delay is essentially ignorance of the law which is not a valid excuse (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413, 414 [ignorance of the law is not a valid excuse for delay]). Nonetheless, this is but one factor to be considered.

The most significant factor is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). “A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action” (Witko v State of New York, 212 AD2d 889, 891).

Here, movant has failed to meet his burden. Notably, movant has failed to submit an incident report establishing that he indeed fell on the date alleged. Nor has movant submitted any medical reports establishing that he sustained the injuries he alleges as a result of the fall. Additionally, movant has not submitted any evidence of the condition he alleges to have been a contributing factor in the cause of his fall (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine-month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness’ statement]). Movant’s unsupported self-serving allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimants’ unsupported opinion does not suffice to establish merit of their claim]).

Additionally, where the alleged condition is transitory and there have been no reports submitted to show that defendant timely investigated the accident, movant’s delay substantially prejudices defendant in its inability to investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because it had not investigated the accident]).

Accordingly, upon weighing all the factors, movant’s motion for leave to file a late claim is DENIED (see Broncati v State of New York, 288 AD2d 172; Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, supra).

July 17, 2008
White Plains, New York

Judge of the Court of Claims