Attorney’s Affirmation in Opposition and
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.