New York State Court of Claims

New York State Court of Claims

CALLENDER v. THE STATE OF NEW YORK, #2009-016-021, Claim No. None, Motion No. M-76165


Late claim motion 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):

Alan C. Marin
Claimant’s attorney:
Gentile & AssociatesBy: Laura Gentile, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 19, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 controlling.[1]

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’ submissions[2], 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.

May 19, 2009
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through J; defendant’s affirmation in opposition; and claimant’s reply affirmation with exhibit K.