New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2009-030-552, , Motion No. M-77010


Late claim motion denied. No proposed claim. No appearance of merit in moving papers that merely allege that inmate claimant fell down the steps at Fishkill Correctional Facility and was injured, without any indication of how the State of New York may be responsible

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:
September 9, 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 Notice of Motion for Permission to File a Late Claim; Affidavit in Support of Motion for Permission to File a Late Claim by Glynn Jones, claimant, and attached papers

  1. Affirmation in Opposition for Leave to File a Late Claim by Barry Kaufman, Assistant Attorney General, attorney for defendant
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. 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 v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 (1982).

Significantly, however, a copy of the proposed claim[1], must accompany the motion, allowing the Court to ascertain the nature and location of the claim, as well as the date of accrual. See Court of Claims Act §11-b; 22 NYCRR §206.6.

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). A motion is “made when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). Here, assuming that the claim accrued on January 2, 2009 when claimant indicates he fell, and further assuming that what is intended is a claim asserting negligence (although there is no indication as to what defendant is alleged to have done), the applicable statute of limitations is three (3) years from accrual [see Civil Practice Law and Rules §214] and the motion is timely.

Mr. Jones indicates in his moving papers that on January 2, 2009 at Fishkill Correctional Facility he fell down the steps and was injured. [See Affidavit in Support of Motion for Permission to File a Late Claim, ¶2]. He writes that he was unable to timely file his claim because “of my physical injuries, mental disorders, physical disabilities and waiting to be seen by a specialist, physical therapy and have an MRI done . . .” [Ibid. ¶ 3]. He suggests that the State will not be prejudiced “because claimant still need[s] to be diagnosed and [treated] for his injuries before filing the actual claim.” [Id.].

No copy of a proposed claim has been included with the motion, thus the motion is denied on that ground alone.

Although copies of a handwritten document entitled “Inmates Grievance” dated June 22, 2009 concerning his requests to see a specialist for leg pain, an undated mental status report reflecting an evaluation of claimant on April 7, 2009 addressed to the Division of Parole, and scattered records concerning medical or psychiatric treatment dated July 20, 2008, April 16, 2009, March 17, 2009, October 16, 2008 and October 1, 2008, are attached to the motion papers, it is unclear exactly what the nature of the claim is based on these documents. Other than saying that he fell down some steps, he does not describe how the State is somehow liable for his fall; or if the State is otherwise liable for some other action or inaction. It is also unclear which, if any, of the factors that the court must consider on a late claim application are addressed therein. Indeed, as pointed out by the defendant it appears that claimant is delaying moving forward because he is awaiting a diagnosis for his claimed injury. [Affirmation by Barry Kaufman, Assistant Attorney General, ¶6].

It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. Given the failure to include a proposed claim, or to otherwise describe the nature of the claim in the papers that were submitted, there is no indication how the State could be held liable to this claimant.

Accordingly, claimant's motion [M-77010] for permission to serve and file a late claim is hereby in all respects denied.

September 9, 2009
White Plains, New York

Judge of the Court of Claims

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
. . .”