This is claimant’s motion for permission to file a late claim, arising
from a June 5, 2006 incident in which she was injured after falling in a wet
hallway in Helen Hayes Hospital, a State facility. Defendant opposes the
motion, somewhat perfunctorily, by contending without further detail that
claimant “fails to raise a legally sufficient reasons” to support
her application. 
Claimant alleges she was unaware that Helen Hayes was a State hospital and was
unaware of the requirement to serve and file a claim within 90 days of accrual
(Court of Claims Act §10). She did not retain an attorney until
February 2007, well after the expiration of the statutory 90-day period, and the
instant motion papers were not served until November 2007.
Court of Claims Act §10(6) grants the court the discretion to allow the
filing of a late claim, upon consideration of all relevant factors including
whether claimant’s delay was excusable, whether defendant had
“notice of the essential facts constituting the claim” and the
opportunity to conduct a timely investigation, whether defendant would suffer
substantial prejudice should the motion be granted, whether the proposed claim
appears meritorious and whether claimant has an alternate remedy.
While the submitted papers do not indicate that claimant’s delay was
excusable, and in particular do not address the nine-month delay between when
counsel was retained and the instant motion papers prepared and submitted,
presentation of a reasonable excuse is not a requirement for late claim relief
but rather only one factor to consider (Matter of Carvalho v State of New
York, 176 AD2d 317 [2d Dept 1991]).
Claimant has attached a copy of a contemporaneous Helen Hayes Hospital
“Events Report” (Exhibit A). That document states claimant was
“walking off Unit 3B in front of Room 1 – water on floor in front of
food cart. [Claimant] slipped on floor hitting (R) hand on floor. Severe pain
in (R) wrist. States also hit (R) side of face. Watch band broke off
wrist.” The report also states an arm board, ice and an ace bandage were
applied and claimant was sent to the Nyack Hospital emergency room.
The court finds that, other than the absence of a reasonable excuse for
claimant’s delay, the balance of the statutory factors weigh in favor of
granting the application. In particular, the court finds that the Events Report
demonstrates notice of the essential facts constituting the claim on the part of
three Helen Hayes employees, including the assistant director of nursing.
Moreover, in indicating that the cause of the incident was a wet hallway floor,
the report would satisfy the more stringent, but not directly applicable
standard of providing actual knowledge of “the facts that underlie the
legal theory” that governs applications pursuant to General Municipal Law
§ 50-e(5), a statute with requirements similar to, but distinct from, Court
of Claims Act §10(6) (Grande v City of New York, __ AD3d __ , 2008
N.Y. Slip Op. 01344 [2d Dept Feb 13, 2008]).
The most significant factors are the appearance of merit, given that
claimant’s undisputed factual allegations are taken as true for the
purpose of §10(6) analysis and the lack of any appreciable prejudice to the
State (see Jomarron v State of New York, 23 AD3d 527 [2d Dept 2005];
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1
The proposed claim is deficient in that it is denominated a “Notice of
Claim” instead of a “Claim” and that instead of a demand for
relief it concludes by stating it is presented for “adjustment and
payment” and that claimant intends to commence an action.
In accordance with the foregoing, the motion is granted. Claimant may serve
and file her claim (i.e., the “Notice of Claim” attached as Exhibit
D, amended to correct the two noted deficiencies) within 40 days of the filing
date hereof, in compliance with all applicable provisions of the Court of Claims
Act and the Uniform Rules for the Court of Claims.