Maria Callender moves for permission to file a late claim pursuant to
§10.6 of the Court of Claims Act (the “Act”). Her proposed
claim arises from an October 8, 2008 incident in which she tripped on an alleged
uneven sidewalk outside SUNY Downstate Medical Center in Brooklyn, which caused
her to suffer injuries including a fractured finger. In order to determine this
motion, six factors enumerated in the Act must be considered: whether (1)
defendant had notice of the essential facts constituting the claim; (2)
defendant had an opportunity to investigate the circumstances underlying the
claim; (3) defendant was substantially prejudiced; (4) claimant has any other
available remedy; (5) the delay was excusable and (6) the claim appears to be
meritorious. The factors are not necessarily exhaustive, nor is the presence or
absence of any particular factor
The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
Claimant, who was on her way to work at Downstate when she fell, states that
Downstate parking attendants witnessed her fall and helped her to her feet,
after which she notified her supervisor. She also notified the security office
and was treated for her injuries at Downstate on the date of the incident. In
addition, an accident report was prepared and this motion was made only 18 days
after claimant’s statutory 90 day period for making a claim had expired.
Defendant makes no argument with regard to these three factors, and I find that
they have been satisfied.
As to an alternate remedy, defendant argues that claimant has made a
Workers’ Compensation claim. Claimant concedes that if she is awarded
such benefits, they would be her exclusive remedy. However, a decision by the
Workers’ Compensation Board has apparently not yet been made, and it
appears from the submissions on this motion that claimant was not at work when
the accident occurred. With regard to excuse, counsel essentially states that
she mistakenly sent a letter to Downstate rather than serving and filing a
claim. This is not an excuse recognized for the purposes of the late claim
provisions of the Act. See, e.g., Matter of E.K. v State of New York,
235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied, 89 NY2d 815, 659
NYS2d 856 (1997).
Finally, it must be determined whether the proposed claim appears meritorious.
Section 7-210 of the Administrative Code of the City of New York provides in
relevant part that the owner of property abutting a city sidewalk is required to
maintain the sidewalk in a reasonably safe condition, and is liable for injuries
proximately caused by the failure to do so. Defendant does not dispute that
§7-210 applies in this case.
As to the happening of claimant’s accident, along with her own affidavit,
she has submitted the affidavits of two eyewitnesses, along with the affidavit
of an engineer who gives the opinion that there was a tripping hazard that
should have been remedied. I find that for the purposes of this motion,
claimant meets the standard set forth in Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977):
(i) the claim “must not be patently groundless, frivolous, or legally
defective” and (ii) upon consideration of the entire record, including the
proposed claim and any exhibits or affidavits, “there is reasonable cause
to believe that a valid cause of action exists.”
Accordingly, having considered the six factors in view of the parties’
, IT IS ORDERED that motion no.
M-76165 be granted and that within forty-five (45) days of the filing of this
Decision and Order, claimant shall serve and file the proposed claim submitted
as exhibit K to her reply papers in compliance with §§11 and 11-a of
the Court of Claims Act.