PATTERSON v. THE STATE OF NEW YORK, #2008-044-562, Claim No. None, Motion No.
Claimant’s third motion for permission to file/serve a late claim is
1 1.The Court has, sua sponte, amended the caption to reflect the State of New
York as the sole proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
TREMAINE PATTERSON, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Roberto Barbosa, Assistant Attorney General
July 23, 2008
See also (multicaptioned
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 ).
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,
date that claimant was injured when he allegedly bit into a metal screw located
inside of his coffee cake
. 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 ). The applicable statute of limitations for negligence
is three years from the date of accrual (see
CPLR 214 ). 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
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
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or
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 , lv dismissed 99
NY2d 589 ). 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
This factor also weighs in favor of
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
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 ). 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 ).
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 ; Mercer v City of New York, 223 AD2d 688
, affd 88 NY2d 955 ).
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
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
2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General,
dated May 14, 2008, and attached Exhibit A.
. 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,
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.
. 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.
. 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.”