New York State Court of Claims

New York State Court of Claims

DARRIGAN v. THE STATE OF NEW YORK, #2008-029-006, Claim No. None, Motion No. M-74214


Late filing motion granted. Contemporaneous accident report contained sufficient information to provide notice of the essential facts constituting the claim and, although not required by the Court of Claims Act, the legal theory underlying the claim.

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:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 29, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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. [1]

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[3]). 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 [1977]).

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.

February 29, 2008
White Plains, New York

Judge of the Court of Claims

[1].The court considered claimant’s Notice of Motion, Affirmation and Exhibits and defendant’s responding Affirmation.