Notice of Motion for Leave to File a Late Claim, Attorney Affirmation, Affidavit
of Michael Orbino, Proposed Claim
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
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.