New York State Court of Claims

New York State Court of Claims

HARRISON v. THE STATE OF NEW YORK, #2008-038-603, , Motion No. M-74327


Synopsis


Motion to file a late claim granted. Notice of Intention to file a claim served two months after expiration of 90 day period. Although claimant did not have an acceptable excuse for the delay, all other factors set forth in Court of Claims Act § 10 (6) weighed in claimant’s favor

Case Information

UID:
2008-038-603
Claimant(s):
FRANK HARRISON
Claimant short name:
HARRISON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-74327
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
FRANZBLAU DRATCH, P.C.Brian M. Dratch, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
Frederick H. McGown, III, Assistant Attorney General and Michele Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This is a motion pursuant to Court of Claims Act § 10 (6) for permission to file a late claim. Claimant, an inmate at Greene Correctional Facility, allegedly sustained a knee injury on June 7, 2006, when he stepped into a “sink hole” in a sidewalk at the correctional facility. Claimant, pro se, served the first of several Notices of Intention to File a Claim on November 11, 2006, and filed his claim, pro se, on June 14, 2007. Claimant acquired representation in December of 2007. Apparently recognizing that the pro se claim may be jurisdictionally unsound because claimant’s first notice of intention to file a claim was not served until more than 90 days after the injury-producing event (see Court of Claims Act § 10[3]; § 11[a][i]), claimant’s counsel immediately made the instant motion for permission to file a late claim. The motion is opposed by defendant.[1] The proposed claim alleges that defendant was negligent in failing to maintain the walkway in which there was a sinkhole (see Dratch Affirmation, Exhibit H, ¶ 3). Any confusion that the pro se claim sounded in medical malpractice was dispelled during a telephone conference with counsel and the Court (see Dratch Correspondence, Mar. 18, 2008). Thus, defendant’s opposition to the motion on the ground that it is not supported by an affidavit of merit from a physician (see CPLR 3012-a; McGown Affirmation, ¶ 2B) is without force.

In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the movant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

The State’s opposition to the motion on the ground that claimant has not offered a reasonable excuse for the late filing has merit. Claimant learned of the seriousness of his injury on August 25, 2006 (see Harrison Affidavit, ¶ 3), which was within the ninety-day period for serving a notice of intention by September 5, 2006, and he offers no explanation for his failure to serve the notice of intention after he discovered the extent of his injury and prior to the expiration of the ninety-day period. Claimant’s status as an incarcerated inmate and his claimed reliance on erroneous legal advice constitute a proffered excuse of ignorance of the law, an excuse which does not weigh in his favor (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003];Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Further, his reliance on allegedly erroneous legal advice regarding the time within which he could serve a timely notice of intention is particularly non-compelling because it appears that claimant described the case to Prisoners’ Legal Services not as a premises liability claim, but as a medical malpractice claim which may have had a later date of accrual (see Dratch Affirmation, Exhibit G).

Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether 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 the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant demonstrates that he served a notice of intention to file the claim approximately two months after the ninety-day notice period expired (see Dratch Affirmation, Exhibit A), constituting only a slight delay. Defendant does not contend that it lacked notice of the essential facts or that it lacked the opportunity to timely investigate the claim. Nor does defendant claim substantial prejudice flowing from the two month delay in claimant’s service of the notice of intention.

The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Here, the proposed claim alleges that defendant failed to properly maintain its sidewalk, that defendant’s negligence caused claimant to slip and fall in two sinkholes in the sidewalk, and that he sustained injury as a result of the fall. Clearly, these allegations satisfy the appearance of merit inquiry of Court of Claims Act § 10 (6).

Finally, claimant asserts that he has no other available remedy, an assertion that is undisputed by defendant and accepted by the Court.

In sum, all of the factors set forth in Court of Claims Act § 10 (6) but for an acceptable excuse for the delay in serving the notice of intention weigh in claimant’s favor. The two-month delay in serving the notice of intention does not appear to have affected defendant’s investigation of the claim or caused it substantial prejudice in any other way, and thus, claimant’s lack of an acceptable excuse does not weigh heavily against claimant’s motion. The claim has the appearance of merit, and claimant has no other available remedy. Considering and weighing all of these factors, the Court concludes that the motion for permission to file a late claim should be granted.

Accordingly, it is

ORDERED, that Motion No. M-74327 is GRANTED, and it is further

ORDERED, that claimant is directed to file and serve the proposed claim in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, not later than thirty (30) days after the date of filing of this Decision and Order.


June 27, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Notice of Motion, filed December 14, 2007;

(2) Affirmation in Support of Brian M. Dratch, Esq., dated December 13, 2007,

with Exhibits A-H;

(3) Affidavit of Frank Harrison, sworn to November 29, 2007;

(4) Affirmation in Opposition of Frederick H. McGown, III, AAG, dated January 2, 2008;

(5) Reply Affirmation of Brian M. Dratch, Esq., dated January 11, 2008

(6) Correspondence of Brian M. Dratch, Esq., dated March 18, 2008, with proposed claim;

(7) Correspondence of Nancy Schulman, Principal Law Clerk, dated March 31, 2008;

(8) Correspondence of Frederick H. McGown, III, AAG, dated April 2, 2008.


[1]. Claimant’s motion was initially flawed because it was filed and served without a proposed claim (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; DeLeon v State of New York, UID # 2006-032-056, Motion No. M-71268, Hard, J. [Jul. 5, 2006]). During a telephone conference with Mr. Dratch and the Court, Assistant Attorney General Michele Walls consented to allow claimant to submit a proposed claim in support of the motion, and the proposed claim has been submitted as claimant’s Exhibit H. Defendant has submitted no further substantive response to the submitted proposed claim or the correspondence that accompanied it.