4-6 Filed Papers: Claim No. 115421, Answer to Claim No. 115421, McMillan v
State of New York, UID # 2008-030-579, Claim No. 115421, Motion Nos.
M-75501, CM-75694 (Scuccimarra, J., December 1, 2008) and underlying
John McMillan alleges in his proposed claim that defendant’s agents at
Green Haven Correctional Facility negligently created a dangerous puddling
condition in the area outside his cell by the daily delivery of hot pots of
water, causing him to slip, fall and suffer injury when he returned from the
morning meal on September 19, 2007. Such daily water deliveries occur between
5:30 and 6:00 a.m. he avows, and involve filling water buckets through the bars
to an inmate’s cell. As a result of the procedure, water is spilled on the
floors of the company creating a hazard. The spills are frequently not mopped up
and no warning signs are posted. Claimant alleges that such water deliveries
occurred on the morning of the incident, and that water remained on the floor in
front of his cell when he returned from his morning meal causing him to slip and
fall in front of his cell, whereupon his ankle was trapped beneath the cell
gate. His ankle broke, and a bone in his foot was dislocated.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in §10(6) of the Court of Claims Act. The factors stated
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; and (6) whether any other remedy is
The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. The
presence or absence of any particular factor is not dispositive Bay Terrace
Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's
& Firemen's Retirement System
, 55 NY2d 979, 981 (1982).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . .” Court of Claims Act §
10(6). Here, the applicable statute of limitations is three (3) years, thus the
motion is timely premised on an asserted date of accrual of September 19, 2007.
Civil Practice Law and Rules §214(5). A copy of the proposed
, must accompany the motion, allowing the
court to ascertain the particulars of the claim, including the date of accrual,
the location of the alleged accident, and what injuries are alleged. See
Court of Claims Act §11(b); 22 NYCRR §206.6. In the papers submitted
in support of this motion, Mr. McMillan writes that his delay was excusable
because he is not a lawyer, and had no access to legal advice during the
statutory period for filing. He states that the State had notice of the
essential facts of his claim and an opportunity to investigate because he was
treated in the facility for his injuries, and his fall was witnessed by guards.
Finally, he notes he has no other remedy.
Mr. McMillan has attached a contemporaneous incident report generated by the
facility containing a brief description of the accident. The report provides by
way of description: “Inmate McMillan.. . .was returning to his cell from
the breakfast meal. Upon reaching his cell he slipped on some water which was
on the company and fell. The accident was observed by C.O. Dwyer who called a
medical response and notified the area supervisor Sgt. Wahlquist.”
Claimant is noted as having been transported first to the facility clinic, and
later to Putnam Hospital for treatment of a fractured right fibula. The report
indicates that photographs and paperwork have been filed.
Defendant argues that no factual assertions have been made suggesting either
actual or constructive knowledge of the existence of any dangerous condition
that morning, and that claimant’s “unsupported speculation as to
what may have created the particular condition that made him fall provides no
basis for a conclusion that this putative claim against the State possesses any
appearance of merit.” [Affirmation by J. Gardner Ryan, ¶7].
Defendant has attached an inmate grievance complaint apparently completed by
claimant containing a description of the problem as described by claimant on
September 28, 2007 when he signed the grievance. [See ibid. Exhibit A].
Claimant wrote that water drippings from the morning water deliveries were not
being mopped up nor were any warning signs being posted, creating hazards for
anyone passing including inmates and correction officers. [Id.]. He then
described his own fall, saying “The heel of my state boot contacted
squarely with an unseen, unnoticed half-dollar sized puddle of water . .
Turning toward the present application, the closely related factors of notice,
opportunity to investigate and prejudice to the State, considered together,
weigh toward granting claimant’s motion. A claim identical to the one
proposed had been dismissed on December 17, 2008 on defendant’s motion,
based upon claimant’s failure to timely and properly serve the claim.
[See McMillan v State of New York, UID # 2008-030-579, Claim No.
115421, Motion Nos. M-75501, CM-75694 (Scuccimarra, J., December 1, 2008)].
There was a correction officer who witnessed the fall, and an immediate
investigation - including, apparently, the taking of photographs - occurred. The
passage of time has not been so great that the State’s ability to
investigate further is impeded to its prejudice.
A claim of lack of knowledge of the law and an inability to retain counsel do
not constitute acceptable excuses. Innis v State of New York, 92 AD2d
606 (2d Dept 1983), affd 60 NY2d 654 (1983). The absence of an excuse,
however, is but one of the factors to be considered, and does not necessarily
preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State
Employees’ Retirement System Policemen’s & Firemen’s
Retirement System, supra.
The appearance of merit is viewed as the most important factor to consider in
an application to serve and file a late claim. A claim appears to be
within the meaning of the statute if it is not patently groundless, frivolous or
legally defective and a consideration of the entire record indicates that there
is reasonable cause to believe that a valid cause of action exists. Matter of
Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant
need not establish a prima facie case at this point, but rather the appearance
of merit. If the allegations in the claim are accepted as true for the purposes
of the motion, claimant has made the requisite showing of merit in order to
permit late filing of his claim.
Despite the various factual and legal arguments advanced by defendant with
respect to whether a dangerous condition existed, and while the issue of notice
of the condition - actual or constructive - would need to be addressed by
claimant at trial, the issues raised by defendant do not preclude a finding of
merit for late claim purposes. Claimant has alleged facts that the floor
puddling was a recurring condition about which the State was aware or should
have been aware and corrected by, for example, placing proper warnings and
timely mopping. Any failure claimant may have shown in proceeding with caution
is a matter of comparative negligence.
Contemporaneous reports reference the fact that water was underfoot, and the
accident was witnessed by a correction officer. While defendant points out the
potential weakness claimant might have in proving his claim at trial, [see
e.g. Medina v State of New York, UID #2003-30-015, Claim No. 102009
(Scuccimarra, J. April 23, 2003)], for late claim purposes there is the
appearance of merit in that the claim is not patently groundless or frivolous,
when viewed overall.
Accordingly, claimant’s motion for permission to serve and file a late
claim is hereby granted. Claimant is directed to serve his claim upon the
Attorney General, and to file it with the Chief Clerk of the Court of Claims
within forty (40) days from the date of filing of this Decision and Order in the
Clerk’s Office, with such service and filing to be in accordance with the
Court of Claims Act.