Attorney’s Affirmation in Opposition and
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).