Movant brings a motion for permission to file a late claim pursuant to Court of
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]; 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.