New York State Court of Claims

New York State Court of Claims

SMILEY v. THE STATE OF NEW YORK, #2009-009-001, Claim No. NONE, Motion No. M-75407


Claimant’s motion for permission to serve and file a late claim was granted.

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:
BY: Robert A. Quattrocci, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
February 1, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affirmation, with Exhibits (including Claimant’s Affidavit as Exhibit A and Proposed Claim as Exhibit B) 1,2

Memorandum of Law (in Support) 3

Affirmation in Opposition, with Exhibit. 4

Reply Affirmation 5

In his proposed claim, claimant alleges that he was injured on December 27, 2007 when he slipped and fell on a wet floor in the lobby of University Hospital in Syracuse, New York. Claimant further alleges that just prior to his fall, a State employee had mopped the floor but had failed to place a warning sign in the area in which claimant was walking.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117).

Claimant’s proffered excuse for failing to timely serve and file his claim is that he was not aware of the seriousness of his injury until July 2008, when he was informed by his physician that he needed spinal surgery. However, claimant apparently had previously sought medical attention after his fall, and had been receiving medical treatment through July 2008 when he was informed of the seriousness of his injury. Prior to July 2008, therefore, claimant was certainly aware that he had suffered some type of injury as a result of his fall. In such cases, and authorized by Court of Claims Act § 10(3), a claimant may serve a notice of intention to file a claim within the 90-day statutory period, which then extends the time that claimant may institute a claim, based upon negligence, for a period of two years from the date of the incident. Furthermore, a claimant does not necessarily have to set forth the specific items of injuries in this notice, since its purpose is simply to place the State on notice that a claim may be served and filed in the future. Therefore, even though claimant did not know the extent of his injuries, he still had the opportunity to serve a notice of intention and reserve his right to institute a claim, which he failed to do (Atterbury v State of New York, 26 Misc 2d 422). Claimant’s failure to proceed, either with the service of a notice of intention or the service and filing of a claim within the 90-day statutory period, must therefore be viewed as ignorance of the law within the meaning of the Court of Claims Act (Cajal v State of New York, Ct Cl, May 9, 2001, Marin, J., Claim No. None, Motion No. M-62793, [UID No. 2001-016-035])[1]. Accordingly, the Court finds that claimant has not provided an acceptable excuse for his failure to timely proceed in this matter.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together.

In this matter, there is no dispute that the defendant had knowledge of this incident, since an injury report was completed immediately following claimant’s fall (Exhibit C to Items 1,2). It also appears that the incident was investigated by one Officer Stalker, since his narrative report is attached to the injury report. Defendant contends, however, that since claimant refused medical attention at that time, it had no notice of any potential lawsuit, and without such notice, it did not have any opportunity to investigate a potential claim.

As set forth in claimant’s moving papers, however, and as confirmed by the information contained in the injury report, the incident was in fact witnessed by Officer Stalker, who also indicates that the incident was captured by a security camera. Therefore, it is the opinion of this Court that the State will not suffer any substantial prejudice should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show 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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

As set forth above, claimant has alleged that he slipped and fell on a wet floor which had been recently mopped by a State employee, and that the employee failed to place appropriate warning signs of the wet floor. Based on these allegations, the Court finds, for purposes of this application, that claimant has indeed established the appearance of a meritorious claim based upon negligence. It does not appear that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Accordingly, after weighing and considering all of the factors set forth in Court of Claims Act, § 10(6), and based upon its review of the papers submitted herein, it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-75407 is hereby GRANTED; and claimant is directed to serve and file his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

February 1, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at