New York State Court of Claims

New York State Court of Claims

ORBINO v. THE STATE OF NEW YORK, #2009-009-028, Claim No. NONE, Motion No. M-76577


Claimant’s application 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: Timothy R. Mandronico, Esq., Of Counsel.
Defendant’s attorney:
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 28, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion for Leave to File a Late Claim, Attorney Affirmation, Affidavit of Michael Orbino, Proposed Claim[1], Memorandum of Law 1,2,3,4

Affirmation in Opposition, with Attachments 5

In his proposed claim, claimant alleges that he suffered personal injuries on July 10, 2007 at the Willard Drug Treatment Center in Willard, New York, where he was then residing. Mr. Orbino alleges that he slipped and fell on a wet floor, and as he was falling his hand went through a window as he tried to break his fall, and he suffered lacerations to his hand as a result. Claimant alleges that the State was negligent in failing to adequately maintain the floor area and by leaving the floor in a wet and slippery condition without any warning signs.

Since the incident forming the basis of this claim allegedly occurred on July 10, 2007, and since this application was filed with the Clerk of the Court of Claims on April 20, 2009, the motion is timely pursuant to § 10(6) of the Court of Claims Act.

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).

With regard to excuse, the only explanation provided as to why claimant did not timely serve and file his claim is based upon the fact that he was incarcerated at the time of the incident and therefore did not have available legal services or the advice of an attorney. Even so, incarceration, in and of itself, does not constitute a reasonable excuse for failure to timely serve and file a claim (Plate v State of New York, 92 Misc 2d 1033). As a result, the Court finds that claimant has not set forth any acceptable excuse for his failure to timely serve and file his claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this particular matter, the State acknowledges that it had actual notice, on the day of the incident, that Mr. Orbino had suffered an injury, and that the State did in fact investigate this incident. Based on the foregoing, the Court concludes that the State would not be substantially prejudiced 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).

Based upon the submission of documents such as the Inmate Injury Report, an Unusual Incident Report, medical reports, and other memoranda from individuals directly involved in the investigation of this incident, defendant’s attorney has set forth a different scenario as to how claimant suffered his injuries, and that these injuries may have been self-inflicted.

The Court acknowledges that such documents raise a question as to the veracity of claimant’s supporting affidavit. Nevertheless, while such documents may very well have a bearing on the ultimate determination of State liability, they are not dispositive of this application, in which claimant must only establish that the proposed claim is not patently groundless, frivolous, or legally defective. The Court therefore finds that claimant has made a sufficient showing as to the appearance of merit to satisfy the minimal standards of Santana. Claimant, however, is cautioned that this determination should not be viewed as any indication as to the ultimate success (or failure) of his claim.

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, 981) and none of the factors can require denial as a matter of law.

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

Therefore, it is

ORDERED, that Motion No. M-76577 is hereby GRANTED; and claimant is directed to file and serve a properly verified and titled claim 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.

September 28, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. The proposed claim is incorrectly labeled as a “Notice Intention to File Claim”.