New York State Court of Claims

New York State Court of Claims

HOPKINSON v. STATE OF NEW YORK, #2009-018-035, Claim No. NONE, Motion No. M-76524


Late claim application granted for failure to assign bottom bunk bed despite prior facility granting permit for medical reasons

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:
Defendant’s attorney:
Attorney General of the State of New York
By: JAMES J. WILLIAMS, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks late claim relief pursuant to Court of Claims Act § 10(6). Defendant

opposes the relief.

Court of Claims Act § 10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]). Claimant’s motion is timely (Court of Claims Act § 10[6]; CPLR § 214[5]).

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.

In his proposed claim, Movant states that he arrived at Gouverneur Correctional Facility on October 1, 2008, and advised the interviewing correction officer, Sergeant Whitmarsh, that he needed a bottom bunk because of a problem that he had with his left knee. Movant indicates that he told Sergeant Whitmarsh that his medical records prescribed an indefinite bottom bunk permit, and that while he was at Riverview Correctional Facility he had physical therapy for his knee. He also provided the same information to the intake nurse, Ms. Hamilton. Both Sergeant Whitmarsh and Nurse Hamilton told Movant that he would have to resolve the bed assignment on his own. The proposed claim thereafter states that “[o]n Oct. [sic] 20, 2008, my injured knee gave out on me as I was coming down the ladder and I fell injuring my back. Shortly after I was switch [sic] to the bottom bunk.” (Proposed claim page 2, ¶3)

Defendant argues that Movant has failed to show that five of the six enumerated factors weigh in his favor. Most importantly, Defendant argues that the proposed claim simply lacks the appearance of merit and as a result, permission to file a late claim should not be granted.

Turning to the statutory factors, the first factor, is whether the delay in filing the claim is excusable. Movant alleges that the delay in filing and serving a timely claim in this matter was because he could not access the law library due to his placement in the Special Housing Unit (SHU). Upon arrival at the next facility he asserts that he was quarantined and limited access to his personal property. The Courts have found that such excuses are insufficient (see Matter of Sandlin v State of New York, 294 AD2d 723 [lack of awareness of filing period, inability to confer with counsel and lack of access to legal references were insufficient excuses]; Matter of Galvin v State of New York,176 AD2d 1185, lv denied 79 NY2d 753 [ignorance of the law was no excuse]). This factor weighs against granting Movant’s application.

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. Movant asserts that the State had notice of the essential facts because he informed them upon his arrival of his medical problems and needs, and so the State had the opportunity to prevent further injury. Defendant does not dispute that it had notice of Movant’s accident; however, it denies notice of “the underlying event” - Movant’s prior medical condition and the exchange involving Movant’s requests for a bottom bunk bed at the time of his transfer. It is clear from the medical record made on the date of the accident that Movant complained of knee and back pain because he fell off the top bunk bed. The record from that day also reflects that Movant was moved to a bottom bunk bed. Movant’s prior medical records from Riverview Correctional Facility reflect a prior injury to Movant’s left knee and treatment. Also, attached to Movant’s application is a “Permit For Special Health Items” indicating he was issued a bottom bunk indefinitely for health or medical reasons from Riverview Correctional Facility. There seems to be sufficient information to have placed the State on notice of the underlying facts of this proposed claim, particularly given Defendant’ s indication that Movant also filed a grievance related to his top bunk assignment prior to bringing this motion. However, even if the State did not have notice or an opportunity to investigate, Movant filed this motion within just a few months of the expiration of the 90 days after his fall on October 20, 2008, and there are various documents (i.e., the ambulatory health records, the transfer health records from the prior facility, grievance complaint, etc.) available to assist with an investigation so it is unlikely the State will suffer substantial prejudice if this application is granted.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Unlike a party who has timely filed and served a claim, a party seeking to file a late claim has the heavier burden of showing that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally this standard is met if the proposed claim 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). Although as Defendant points out, the claim is not as clear as it could be regarding Movant’s allegations of wrongdoing. Accepting Movant’s assertions as true, and read as a whole, it does provide sufficient information to allow the State to know what it allegedly did wrong and the reason that Movant is seeking damages. A medical records review is required for placement in a double cell, to assess whether the inmate has a medical condition which would require him to be assigned a bottom bunk bed (see 7 NYCRR 1701.5[6]). Given the “Permit For Special Health Items” from Riverview Correctional Facility indicating Movant was issued a bottom bunk indefinitely for health or medical reasons there is reasonable cause to believe that Movant has a potentially meritorious claim. Movant has met the minimal standards for assessing the appearance of merit of the proposed claim.

The final factor is whether the proposed claimant has any other remedy available. By admission, Defendant acknowledges that Movant has no other remedy.

Based upon consideration of all of the factors, Movant’s motion is GRANTED. Movant is directed to pay the required fee or make a proper application pursuant to Court of Claims Act

§ 11-a, file and serve his proposed claim in accordance with Court of Claims Act § 11 and all applicable Court Rules within 45 days of the date this Decision and Order is filed with the Clerk of the Court.

August 11, 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 for Permission to File Late Claim.

2. Affidavit of Bernard Hopkinson, in support, sworn to March 31, 2009, with exhibits attached thereto.

3. Affirmation of James J. Williams, Esquire, Assistant Attorney General, in opposition.

4. Statement submitted by Claimant, in support, postmarked May 29, 2009.