New York State Court of Claims

New York State Court of Claims

DANIEL v. THE STATE OF NEW YORK, #2009-015-158, Claim No. NONE, Motion No. M-76128


Pro se inmate's motion to file a late claim for injuries to his right knee when wheelchair struck defect in pavement 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:
Joseph Daniel, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, an inmate proceeding pro se, seeks late claim relief pursuant to Court of Claims Act § 10 (6). Movant, who is confined to a wheelchair, alleges in his proposed claim that on September 7, 2007 he suffered an injury to his right knee when his wheelchair tipped over due to "numerous holes and cracks in the pavement . . ." on the grounds of the Franklin Correctional Facility in Malone, New York. At the time of the alleged incident the movant was being escorted to the mess hall by his "mobile assistant operator". Movant alleges that the respondent had notice of the condition of the pavement but failed to correct it.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since the proposed claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies. The instant application is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the claimant for the failure to timely serve and file his claim is that his paperwork was lost in "movement of transfer" (movant's affidavit in support, ¶ 2). The nature of the paperwork lost is not identified and the defendant indicates in opposition to the motion that the claimant has not been transferred since the date of the accident. Under these circumstances the Court does not find the excuse for the delay in serving and filing the claim to be reasonable.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant alleges and the defendant concedes that a notice of intention to file a claim was served. However, the notice of intention was served more than 90 days following accrual of the claim (see Court of Claims Act § 10 [3]). Nonetheless movant was treated in the prison hospital on the date of the accident and Victor Davis, the Mobile Assistant Operator, was present when the accident occurred. (see proposed claim, ¶ ¶ 6, 7, 8). Thus, the State was immediately aware of the accident and had an opportunity to investigate the circumstances in which it occurred. Inasmuch as the State makes no argument that it will be prejudiced in the event movant is permitted to file a late claim these factors weigh in favor of granting the motion.

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184 [2006] ).
Like any other landowner the State has a duty to maintain its premises in a reasonably safe condition under the circumstances (Colangione v State of New York, 187 AD2d 844 [1992]; Rosado v State of New York, 139 AD2d 851 [1988]; see also Basso v Miller 40 NY2d 233, 241 [1976]). This duty obligates the State to “take every reasonable precaution to protect those who are in its institutions”, including inmates in prison (Bowers v State of New York, 241 AD2d 760, 760 [1997]; see also Heliodore v State of New York, 305 AD2d 708 [2003]; Melendez v State of New York, 283 AD2d 729 [2001]; appeal dismissed 97 NY2d 649 [2001]; Condon v State of New York, 193 AD2d 874 [1993]; Rosado v State of New York, 139 AD2d 851 [1988]). The State is not an insurer against any injury which might occur on its premises, however, and negligence will not be inferred from the mere happening of an accident (Melendez v State of New York, 283 AD2d 729, 729 [2001], appeal dismissed 97 NY2d 649 [2001]; Bowers v State of New York,241 AD2d at 760). In order to establish liability in a case such as this the claimant must “ ‘show that the defendant . . . had either created a dangerous condition or . . . had actual or constructive notice of the condition’ ” (Heliodore v State of New York, 305 AD2d at 709 [citation omitted]; see also Mercer v City of New York, 88 NY2d 955 [1996]; Seaman v State of New York, 45 AD3d 1126 [2007]; Kappes v Cohoes Bowling Arena, 2 AD3d 1034 [2003]).

In the Court's view the movant met his burden of establishing the potential merit of the claim. Notably, the minutes from the Inmate Liaison Committee meetings, which the movant submitted together with the proposed claim, add some support to the contention that the pavement was defective and that the issue had been brought to the attention of the administration prior to the date the movant was injured.

As to the final factor to be considered, it has not been suggested that an alternative remedy exists.

Balancing the totality of factors, especially the apparent lack of prejudice and potential merit of the proposed claim, persuades the Court that late claim relief is appropriate.

Accordingly, the motion is granted and movant is directed to serve and file his claim in accordance with Court of Claims Act §§ 11 and 11-a within 45 days of the date this Decision and Order is filed.

April 2, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Motion for permission to file late claim sworn to December 2, 2008 with exhibits;
  2. Affirmation of Kent B. Sprotbery dated February 10, 2009