New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2009-037-003, Claim No. NONE, Motion No. M-76023


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:
Cantor, Lukasik, Dolce & PanepintoBy: Frank J. Dolce, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Paul VolcyAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movants’ motion for permission to late file a claim:
  1. Notice of motion and supporting affirmation of Frank J. Dolce, Esq. dated December
11, 2008, with annexed Exhibits A-C;

  1. Supporting affidavit of David C. Smith sworn to December 8, 2008;
3. Opposing affirmation of Assistant Attorney General Paul Volcy dated January 28,


  1. Reply affirmation of Frank J. Dolce, Esq. dated February 4, 2009, with annexed
Exhibit A.

According to the proposed claim (attached to Movants’ motion papers), Movant, David C. Smith,[1] was injured on December 13, 2007 when he allegedly slipped and fell on snow and ice that had accumulated on the driveway of a group home owned and operated by Defendant. Movant now moves the Court for leave to file a late claim.

Initially, the Court must determine whether Movant’s motion to late file a claim was filed within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR statute of limitations (Court of Claims Act § 10 [6]). The failure to file this type of motion within the prescribed time period creates a fatal jurisdictional defect (Byrne v State of New York, 104 AD2d 782 [1984], lv denied 64 NY2d 607 [1985]). The negligence cause of action alleged in the proposed claim is governed by the three year statute of limitations set forth in CPLR § 214. Because Movant’s motion was filed within three years of December 13, 2007, the date of the alleged incident, it is timely.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. In his affidavit, Movant alleges that he did not learn of the severity of his injuries until December 6, 2008 when he was informed by Dr. Lewis, an orthopedic surgeon, that he would require spinal surgery and suffer from some disability. This excuse does not adequately explain the one year delay in filing a claim or in bringing this motion, especially considering that Movant was off work for one to two months after the incident (see Movant’s affidavit) and filed a Workers’ Compensation claim (see December 11, 2008 affirmation of Movant’s counsel). Moreover, as Defendant notes, Movant could have served a notice of intention to file a claim within the 90-day statutory period and thus extended his time to commence a negligence claim for two years from the date of the incident (see § 10 (3) of the Court of Claims Act). The lack of an excusable delay is, however, only one of the factors to be considered by the Court.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). The Defendant does not contest that it had notice of the incident, the opportunity to investigate and will not be prejudiced if Movant’s motion is granted. These factors weigh in favor of Movant’s application. In addition, Defendant does not contend that receipt of Workers’ Compensation benefits forecloses late claim relief. Thus the last factor for the Court to consider also weighs in favor of Movant’s application.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11). In his proposed claim, Movant alleges that Defendant negligently failed to remove snow and ice from the driveway where Movant fell, failed to salt or de-ice the driveway, and failed to keep the premises in a safe condition. Based on the facts alleged in the proposed claim, the Court cannot conclude that a negligence claim brought on behalf of Movant, David C. Smith, would be groundless, frivolous or legally defective. This factor weighs in favor of Movant’s application.

Defendant correctly notes, however, that the motion and the proposed claim also name Lisa M. Smith. The motion papers do not include an affidavit from her and there are no facts alleged in the proposed claim upon which to base a derivative cause of action. During oral argument, Movant’s counsel advised the Court that it was not his intention to file a derivative claim and that he would not be filing such a claim on behalf of Lisa M. Smith if the pending motion was granted.

Based on the foregoing and after balancing all of the factors to be considered by the Court, it is hereby

ORDERED, that the motion of Movant David C. Smith only is granted and he may file and serve a negligence claim comporting with §§ 10, 11 and 11-a of the Court of Claims Act within forty-five (45) days of the date upon which this decision and order is filed.

February 23, 2009
Buffalo, New York

Judge of the Court of Claims

[1]. Because any potential claim of Lisa M.. Smith is derivative, the term “Movant” shall refer to David C. Smith only, unless otherwise noted.