New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2009-010-004, Claim No. NONE, Motion No. M-75987


Movant’s application for leave to serve and file a late claim is 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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on movant’s application for leave to serve and file a late claim:[1]
Notice of Motion, Movant’s Supporting Affidavit and Exhibits................................1

Attorney’s Affirmation in Opposition and Exhibits..................................................2

The proposed claim arises out of an incident which occurred on March 28, 2007 during movant’s incarceration at Bedford Hills Correctional Facility. Movant, a quadriplegic, suffered a severe burn due to defendant’s alleged negligence in failing to properly monitor movant while a hot compress was applied to her back during physical therapy. A claim was timely filed with the Court on Claim No. 113719, however, it was not served upon defendant until March 24, 2008. Accordingly, movant brings this application for leave to serve and file a late claim.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.

The Court has considered the above six factors. While the movant has not presented a valid excuse for her delay (see Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854), the presence or absence of any one factor is not determinative (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

The most significant factor to be considered is the appearance of merit of the proposed claim (see Dippolito v State of New York, 192 Misc 2d 395). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, the Court finds that this pro se movant has sufficiently established an appearance of merit of her claim that it was negligent to leave a quadriplegic unattended with a heat compress on her back. Movant alleges that due to her medical condition, she could not feel pain on her back nor was she physically able to remove herself from contact with the compress. Defendant concedes that movant’s burn was discovered and investigated the day after the incident and photographs were taken of movant’s injuries (Affirmation in Opposition, ¶ 24).

Accordingly, upon consideration of all the factors, including the State’s failure to show that the delay substantially prejudiced defendant and that the State was not afforded the opportunity to timely investigate the circumstances underlying the claim, the Court finds that movant has made a sufficient showing to warrant granting her application. Accordingly, movant shall, within 45 days of this filed-stamped Decision and Order, serve and file a claim in the same form and substance as the proposed claim (Claimant’s Ex. D), and in accordance with the Court of Claims Act. While the Court rejects defendant’s argument that expert medical evidence was necessary to establish an appearance of merit of the proposed claim, the Court cautions movant that the finding of an appearance of merit is limited to this Court’s ruling on the motion and that a heavier burden of proof rests upon movant to prevail at trial.

March 3, 2009
White Plains, New York

Judge of the Court of Claims

[1]. While claimant seeks leave to file a late notice of claim and submits a proposed “Notice of Intention to File a Claim” (Ex. D), the Court considers the application to be one made pursuant to Court of Claims Act § 10(6) and deems claimant’s exhibit D as the proposed claim.