New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2008-044-564, Claim No. None, Motion No. M-74805


Inmate’s motion for permission to file/serve late claim regarding slip-and-fall on ice denied.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Bonnie Gail Levy, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for permission to file a late claim to recover for injuries allegedly incurred when he fell on an icy walkway at Elmira Correctional Facility. Defendant State of New York (defendant) opposes the motion. The Court notes that claimant has included two proposed claims with his motion papers. One claim, dated March 28, 2008, is mostly typewritten, but contains handwritten case citations (the First Claim). In the First Claim, claimant alleges that he fell on December 13, 2007 – while he was going to get his morning medications – because “THERE WAS ICE ON THE FLOOR OUT SIDE [sic] NEXT TO THE GYM YARD WALK,” and the walk had not been salted. Claimant also states that there was no report of his accident even though he had informed Nurse Hall about his fall and the injury to his back. Notably, the First Claim fails to contain information concerning the precise correctional facility where the incident occurred.

The other claim is a pre-printed “fill-in-the-blank” form which was verified March 16, 2008 (the Second Claim). In the Second Claim, claimant alleges that defendant’s conduct took place on December 13, 2007 at E.C.F.[1] Claimant does not indicate the time of the incident, the specific conduct (or lack thereof) at issue or how claimant was injured. It is important to note that neither claim, on its own, contains all the information required by Court of Claims Act

§ 11 (b).

The Court also notes that claimant has provided a notice of motion and an affidavit of service, but has failed to provide an affidavit in support of this motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims § 206.8 (a) (see also 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02). However, the Court will not deny the motion solely on this procedural basis, particularly because the information contained in the attached claims is sufficient for the Court’s review (see e.g. CFJ Assoc. of N.Y. v Hanson Indus., 260 AD2d 917, 919 [1999]).

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]). Because claimant is seeking to assert a cause of action in negligence, the applicable statute of limitations is three years from the date of accrual (see CPLR 214 [5]). Claimant’s cause of action accrued on December 13, 2007, the date of his fall. Accordingly, this motion served on April 8, 2008 is timely.[2]

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.

As the Court stated previously in this Decision and Order, claimant has not provided an affidavit in support of the motion. Claimant has therefore failed to set forth any excuse for his delay in timely serving a notice of intention or timely filing and serving a claim. Further, a claimant’s ignorance of the requirements of the Court of Claims Act, and the mere fact of his or her incarceration, are not adequate excuses for the 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]; Plate v State of New York, 92 Misc 2d 1033 [1978]).[3] 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. Although claimant alleges that he informed Nurse Hall of his fall and injuries, he admits that there is no written report of the incident. Further, claimant has not submitted any medical records substantiating his fall or treatment of any injuries allegedly received. The two factors of notice and opportunity to investigate therefore weigh against claimant.

Defendant argues that it will suffer substantial prejudice because the memory of any potential witnesses will have faded. Defendant’s contention is without merit. The delay in filing and serving the claim has been brief. Moreover, given the nature of the allegedly dangerous condition – the ice on the outdoor walkway – it is possible for the dangerous condition to have disappeared during the 90-day period immediately following claimant’s accident. The Court finds that defendant will not suffer substantial prejudice in maintaining a defense to this claim. Thus, this factor weighs in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. The accident took place at one of defendant’s correctional facilities and was caused by an allegedly defective or dangerous condition. Based upon these allegations and the apparent lack of involvement of any third party, the only remedy available to claimant is an action in the Court of Claims. Accordingly, 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]).

The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, claimant must establish 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]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, supra at 837).

Although claimant has set forth that the allegedly dangerous condition was ice on the walkway, claimant has not provided any additional facts such as the temperature and precipitation history surrounding the time of the incident from which the Court could infer whether this condition existed for a sufficient amount of time to charge defendant with constructive knowledge of it. Further, claimant has not submitted any medical evidence to substantiate his injuries or set forth any treatment. Claimant has therefore not established the appearance of merit. Accordingly, this factor weighs against claimant.

Four of the six statutory factors – including the crucial factor of merit – clearly and substantially weigh against claimant. Claimant’s motion for permission to file and serve a late claim is hereby denied, without prejudice.

July 24, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on April 10, 2008, and attached exhibits.

2) Affirmation in Opposition of Bonnie Gail Levy, Assistant Attorney General, dated May 8, 2008, and attached Exhibit A.

3) Claimant’s letter to the Clerk of the Court dated April 10, 2008.

[1]. Claimant is apparently referring to Elmira Correctional Facility, commonly abbreviated as “E.C.F.”
[2]. Claimant has included two affidavits of service concerning various motions, each containing a different service date. Claimant states that on March 16, 2008, he mailed a notice of motion and affidavit to proceed as a poor person and a claim to, among others, the Attorney General. Based upon defendant’s answering papers, that motion was received at the same time, and in the same envelope, as this motion. The envelope was mailed on April 8, 2008, and the Court will therefore use that date as the date of service of this motion (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]). In the other affidavit, claimant states that he mailed a claim, and a notice of motion and supporting papers on February 23, 2008. However, that affidavit of service does not contain the name or address of the purported recipient.
[3]. In a letter dated April 10, 2008, claimant states that on April 4, 2008, he attempted to mail a notice of intention both to the Court and to the Attorney General, and with the assistance of the “law library officer” completed two disbursement forms for certified mail. Ultimately, both the outgoing mail and the disbursement forms were returned to him, allegedly because he did not have sufficient funds for the encumbrance. Even assuming the truth of these assertions, the claim arose on December 13, 2007, and in order to be timely, the notice of intention was required to have been served on or before March 12, 2008.