New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2008-044-562, Claim No. None, Motion No. M-74919


Synopsis


Claimant’s third motion for permission to file/serve a late claim is granted.

Case Information

UID:
2008-044-562
Claimant(s):
TREMAINE PATTERSON
1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Claimant short name:
PATTERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74919
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
TREMAINE PATTERSON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for the third time for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant State of New York (defendant) opposes the motion. Claimant’s first motion for this relief was denied, without prejudice, based upon his failure to serve the motion papers on the Attorney General’s Office (Patterson v State of New York, Ct Cl, Oct. 26, 2007, Schaewe, J., Claim No. None, Motion No. M-73517 [UID # 2007-044-579]). Claimant’s subsequent motion was denied, again without prejudice, based upon his failure to include a copy of the proposed claim (Patterson v State of New York, Ct Cl, Apr. 4, 2008, Schaewe, J., Claim No. None, Motion No. M-74323).

Defendant contends that this motion “must . . . be denied” because claimant failed to serve a notice of motion along with his motion papers as required by the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8, as well as due to his failure to include a copy of the proposed claim. It is clear that the Court lacks jurisdiction to entertain a motion to file a late claim when the motion papers are not served within the statute of limitations for the underlying cause of action (Court of Claims Act § 10 [6]). However, the Court does have discretion to consider a motion, notwithstanding a party’s failure to include a notice of motion (Uniform Rules for the Court of Claims [22 NYCRR] § 206.1 [b]). A review of the motion papers reveals that the relief demanded is to file a late claim, and claimant has addressed the statutory factors in support of his request. Further, defendant was timely notified of the motion return date, in writing, by the Clerk of the Court. Because defendant has received the type of information normally provided by a notice of motion (see CPLR 2214 [a]), the Court hereby waives the requirement that a notice of motion be served and filed in this case (see Malik v State of New York, Ct Cl, Jan. 22, 2008, DeBow, J., Claim No. 113091, Motion No. M-74308 [UID # 2008-038-582]).

Defendant further asserts that the motion should be denied because claimant failed to included a copy of his proposed claim. Defendant’s contention is without merit. Claimant has attached a document entitled “Notice of Intention to File Claim,” and states within that document that he intends to file a claim. Notwithstanding its incorrect designation, the substance of the attachment complies with the requirements for a claim set forth in Court of Claims Act § 11 (b). Accordingly, the Court will refer to the attachment as a proposed claim and treat it as such.

The claim accrued on December 9, 2006,[2] the date that claimant was injured when he allegedly bit into a metal screw located inside of his coffee cake[3]. A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The applicable statute of limitations for negligence is three years from the date of accrual (see CPLR 214 [5]). Accordingly, this motion served on May 1, 2008 is timely.

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant asserts that the delay in filing a claim was excusable because he waited for an administrative ruling from the Central Office Review Committee – presumably concerning a grievance related to this incident. Claimant provides no basis for his erroneous belief that an administrative determination was necessary prior to proceeding in the Court of Claims. Further, neither claimant’s ignorance of the requirements of the Court of Claims Act nor his incarceration constitutes a valid excuse for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Claimant states that he informed Correction Officer Daughting and Area Supervisor Sergeant Harvey at the time of the incident, and requested medical attention. Claimant apparently also filed a grievance related to this matter. Accepting claimant’s allegations as true, the Court finds that defendant had notice of the essential facts and an opportunity to investigate the incident, both of which factors weigh in favor of claimant. Further, defendant does not argue, and the Court has not discerned, that the failure to timely file a claim has resulted in any prejudice to the State in its defense of this claim.[4] This factor also weighs in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. Claimant’s statement that he has no other available remedy is conclusory. However, there is no evidence from which the Court could infer that a third party may be responsible. Thus, this factor also weighs in favor of claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,

92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York,

154 Misc 2d 199, 202-203 [1992]).

To prevail on this claim of negligence, claimant must prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]).

Claimant may have difficulty establishing at trial that defendant either created the condition or was otherwise negligent in not discovering the foreign object in his coffee cake (Covington v State of New York, Ct Cl, Jan. 11, 2008, Mignano, J., Claim No. 113259 [UID # 2007-029-055]; Turchetti v State of New York, Ct Cl, May 21, 2002, Fitzpatrick, J., Claim No. 94813 [UID # 2002-018-141]). However, claimant’s allegation that a metal screw was inside of the food served to him at a correctional facility is sufficient to demonstrate that the claim is not patently groundless, frivolous, or without merit. Therefore, this factor weighs in favor of claimant.

While claimant’s delay may not have been excusable, the other five factors - including the crucial factor of merit - clearly and substantially weigh in claimant’s favor. Claimant’s motion for permission to file and serve a late claim is hereby granted.

Claimant shall file a claim – which contains the accurate date of the incident – and serve a copy of the claim upon the Attorney General within sixty (60) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.


July 23, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Motion for Permission to File a Late Claim filed on May 5, 2008, and attached exhibit.

2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated May 14, 2008, and attached Exhibit A.


[2]. Notwithstanding that claimant’s proposed claim states that the incident occurred on December 9, 2007, it is clear from his “motion for permission to file a late claim” – as well as documentation previously submitted in the prior two motions for permission to file a late claim (Patterson v State of New York, Ct Cl, Apr. 4, 2008, Schaewe, J., Claim No. None, Motion No. M-74323, supra; Patterson v State of New York, Ct Cl, Oct. 26, 2007, Schaewe, J., Claim No. None, Motion No. M-73517 [UID # 2007-044-579], supra) – that the incident actually occurred on December 9, 2006.
[3]. Although the proposed claim indicates that he bit into a serving of coffee, claimant’s Motion for Permission to File a Late Claim clarifies that he was “biting into his coffee cake during breakfast” when he was injured.
[4]. Except for its argument that claimant’s delay in filing and serving a claim was not excusable, defendant has not addressed any of the other five statutory factors. Rather, defendant has “defer[red] to the Court’s discretion in ascertaining whether [claimant] has addressed each factor.”