New York State Court of Claims

New York State Court of Claims

McMILLAN v. THE STATE OF NEW YORK, #2009-030-531, Claim No. NONE, Motion No. M-76372


Late claim motion granted. For late claim purposes, issues raised by defendant as to whether a dangerous recurring puddling condition existed at Green Haven Correctional Facility, and actual or constructive notice of same, and any culpable conduct on the part of inmate claimant present proof issues for trial, but do not negate appearance of merit, a lesser standard than prima facie proof. The claim is not patently groundless or frivolous overall.

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:
Third-party defendant’s attorney:

Signature date:
May 1, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

1,2 Motion for Permission to File a Late Claim by John McMillan, claimant and attached papers and exhibit

  1. Affirmation by J. Gardner Ryan, Assistant Attorney General and attached exhibit
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 papers

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 available.[1] 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 claim[2], 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 . . .” [Id.].

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 “meritorious”

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.

May 1, 2009
White Plains, New York

Judge of the Court of Claims

[1]. The defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[2]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”