New York State Court of Claims

New York State Court of Claims

VANDENBOSCH v. THE STATE OF NEW YORK, #2008-042-522, Claim No. NONE, Motion No. M-75431


Synopsis


This motion comes before the court by the pro se claimant for permission to file a late claim. Defendant opposes the claimant’s application and asserts there is no showing of merit to the proposed claim. The court finds that there are insufficient allegations to demonstrate that the proposed claim is meritorious and claimant’s motion for permission to file a late claim is denied without prejudice to a further application made on proper and sufficient papers.

Case Information

UID:
2008-042-522
Claimant(s):
JOSEPH VANDENBOSCH #00-B-0681
Claimant short name:
VANDENBOSCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75431
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
JOSEPH VANDENBOSCH, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by the pro se claimant for permission to late file a claim. The court has considered the following papers:
  1. Motion for Permission to File a Claim, filed August 12, 2008
  2. Exhibits annexed to the moving papers
  3. Opposition affirmation of G. Lawrence Dillon, Esq., dated September 22, 2008
  4. Exhibit A, annexed to the opposition affirmation
____________________________________

Claimant contends that he was injured in a fall on November 16, 2007, while he was incarcerated at the Walsh Medical Unit of the Mohawk Correctional Facility, operated by the New York State Department of Correctional Services. The fall allegedly occurred when claimant, seated in a shower chair, fell over while reaching for the soap.

Defendant opposes the claimant’s application for leave to late file a claim. Defendant rests its opposition on two arguments: 1) that the proposed claim served upon the attorney general with the moving papers is not verified, and 2) that the claimant “merely fell off his shower chair and got stuck until a staff member arrived” and thus there is no showing of merit to the proposed claim.

The original motion papers filed with the Clerk of the Court of Claims included both the motion for permission to file a late claim and a motion for permission for poor person status. The last page of the submissions, following the poor person application, was a sworn notarized verification of the proposed claim. It is the court’s assumption that this last page, as it followed the poor person application, was inadvertently omitted from the moving papers served upon the Attorney General. Under the circumstances, and since the proposed claim filed with the moving papers did include a verification, the court finds the claimant’s error in failing to provide the verification page to the Attorney General to be de minimis and this ground is not sufficient basis upon which to deny the claimant’s motion.

The court turns now to the factors set forth in Court of Claims Act Section 10 (6). Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . . , the court shall 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 claimant has any other available remedy.


The presence or absence of any one factor is not dispositive in the court's consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, P.J.

While all of the factors listed in Court of Claims Act Section 10 (6) are relevant to the court’s determination, the defendant does not contend that claimant failed to meet all of the relevant factors, but only that claimant fails to meet the meritorious claim factor. So, for purposes of this motion, the court shall conclude that these other factors weigh in claimant’s favor.

However, the issue of whether the claim appears to be meritorious is often considered the most decisive, since "it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject to immediate dismissal" (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).

Furthermore:

[u]nlike 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).


(Lopez v State of New York, UID No. 2007-010-054, Claim No. NONE, Motion No. M-73641, November 15, 2007, Ruderman, J.).

The proposed claim, in describing the negligent acts of the defendant, simply recites that claimant was showering, while seated in a shower chair, when he leaned over the armrest of the chair to pick up the soap. The seat shifted and he fell on his back, where he remained for some time, as the call bell was not accessible to him. Claimant states that he was told that “the bracket that holds the toilet [sic] seat chair broke”. There are no allegations that defendant created the condition which caused the chair seat to shift, that defendant knew of any defect in the chair, or that defendant had sufficient notice of a problem to have corrected the problem. Under the circumstances, there are insufficient allegations to demonstrate that the proposed claim is meritorious.

Claimant’s motion for permission to late file is denied without prejudice to a further application made on proper and sufficient papers.



October 23, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims