New York State Court of Claims

New York State Court of Claims

RHODES v. STATE OF NEW YORK, #2009-018-030, Claim No. NONE, Motion No. M-76376


Late claim motion granted.

Case Information

1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
ABDELLA LAW OFFICESBy: Robert Abdella, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Michael R. O’Neill, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion for permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant opposes the motion.

The proposed claim seeks damages for injuries Movant sustained while an inmate at the Willard Drug Treatment Campus on November 6, 2008 around 5:10 p.m. It is alleged that Movant, at that time, was unloading carts from a truck at the loading dock in the main kitchen at the facility. Movant asserts that while he was standing on the loading dock, the dock ramp collapsed causing him to fall to the ground and suffer injuries. The claim accrued on November 6, 2008 and Movant had until February 4, 2009, to timely file and serve a claim. Movant timely filed a claim, however, the Attorney General received the claim two days late. As a result Movant brings this application.

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor for the Court’s consideration is whether the delay in serving the claim is excusable. Here, Movant went in to meet with his attorney on January 27, 2009. On January 30, 2009, Movant’s counsel sent out by certified mail, return receipt requested, three copies of the verified claim, one to the Clerk of the Court of Claims, one to the Attorney General in Albany, and one copy to the Willard Drug Treatment Campus. Both the Clerk of the Court and Willard Drug Treatment Campus received their copies of the claim on February 2, 2009. The Attorney General, however, did not receive a copy until February 6, 2009, two days late. It is Movant’s position that a mail processing delay was the reason for the delay. This is not a valid excuse; however, it is only one of the factors for consideration.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors all weigh in favor of granting Movant’s application. Defendant had ample and prompt notice of the facts underlying this claim. On the date Movant was injured, November 6, 2008, a report of inmate injury was made and he was seen at the infirmary. Only 92 days after the incident, Defendant received a copy of Movant’s claim. With prompt notice, Defendant had an opportunity to investigate and will suffer no prejudice by the granting of this application.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

In the proposed claim, which is identical to the claim that was filed with the Clerk of the Court on Februay 2, 2009, Movant alleges that while an inmate at the State owned facility, Willard Drug Treatment Campus, he was working on the kitchen loading dock when the ramp collapsed causing him to fall and be injured. Movant alleges that the State failed to provide him with a safe environment within which to work, and failed to properly secure the loading dock or warn the Movant of the danger. Movant seeks $500,000 in damges.

Defendant, in opposition, alleges that this may be a No-Fault claim, because Movant may have been a “covered person” under the No-Fault statute if he was in the process of loading or unloading a truck at the time of his fall. Since Movant has failed to meet the no-fault serious injury threshold, Defendant argues that the Court should not grant this application without such a showing. Defendant also asserts that Movant had pre-exisiting back problems and had a back brace that he was supposed to wear but failed to do so on the day of the accident.

The No-Fault Insurance Law was intended to provide first-party insurance benefits for injuries arising out of the use and operation of a motor vehicle without regard to fault (Insurance Law § 5102; § 5103). Although the State could be a “covered person” for purposes of the

§ 5102 of the Insurance Law, as the owner of the truck Movant was unloading, here Movant has not alleged any negligence in relation to the use or operation of the truck (see Insurance Law §§ 5102(j) and 5103; Matter of Edwards v State of New York, 119 Misc 2d 355; Joyce v Winkler, 71 AD2d 28; Walton v Lumbermens Mutual Casualty Co., 88 NY2d 211, 214). It appears from Movant’s allegations and description of what happened that the accident did not “arise out of” the use of the truck, but as a result of the unanticipated lowering of the loading dock ramp off the main kitchen at Willard Drug Treatment Campus (Insurance Law § 5103[a][1]; Walton, 88 NY2d at 215). Under these circumstances, Movant need not meet the “serious injury” threshold to bring a claim and the supporting documents presented adequately meet Movant’s burden on a motion for permission to file a late claim; although Defendant’s position may weigh on the sufficiency of the claim at a later juncture and any prior health condition may impact damages.

Since Movant was an inmate at a State facility unloading a State owned vehicle, it is clear that Movant has no other remedy.

Accordingly based upon consideration of all of the factors the Court GRANTS Movant’s motion. Movant is directed to file and serve his claim in accordance with the Court of Claims Act and all applicable Court rules within 30 days of the date this Decision and Order is filed with the Clerk of the Court, and pay any required filing fee.

June 22, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affidavit of Robert Abdella, Esquire, in support, sworn to March 10, 2009, with exhibits annexed thereto.

3. Affirmation of Michael R. O’Neill, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.

4. Reply Affidavit of Robert Abdella, Esquire, in support, sworn to March 31, 2009.