New York State Court of Claims

New York State Court of Claims

CASPER v. THE STATE OF NEW YORK, #2009-041-029, Claim No. None, Motion No. M-76777


Application to file late claim alleging that defendant’s negligence caused inmate-claimant to be injured during work detail is granted, despite lack of reasonable excuse for delay in filing claim, where claim appears potentially meritorious and defendant will suffer no prejudice.

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:
New York State Attorney GeneralBy: Joan Matalavage, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim alleging that claimant was injured on August 2, 2008 due to defendant’s negligence while claimant was required to participate in a work detail at Clinton Correctional Facility. The proposed claim alleges that defendant failed to properly instruct and assist claimant in the required work, required claimant to perform unsafe work and provided an “inadequate work environment.” The claim further alleges that defendant provided negligent medical care after claimant’s injury. Claimant was injured when a file cabinet he was attempting to load onto a truck fell upon him. Defendant opposes the motion on the ground that the claim does not appear meritorious.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “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.”

As set forth above, claimant’s cause of action for negligence arose on August 2, 2008 and the application to file a late claim, made on June 1, 2009, is timely pursuant to CPLR § 214 (5), which provides a three year period to commence such an action.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”
In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “nothing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant has offered no legally recognized excuse for his failure to timely file and serve the claim. Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, “the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief” (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).

The claimant alleges that defendant had immediate notice of claimant’s accident and injury and therefore had timely notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. Defendant does not dispute this and, consequently, claimant’s failure to file or serve a timely claim did not result in substantial prejudice to the defendant.

Claimant has no other available remedy.

Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and supporting materials and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have “the appearance of merit.” Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

The proposed claim, together with the attached exhibits, demonstrates at least the “appearance of merit” of a cause of action for negligent supervision and/or failure to provide safe equipment and training to an inmate participating in facility work programs (Havens v County of Saratoga, 50 AD3d 1223, 1224 [3d Dept 2008], lv denied 11 NY3d 846 [2008]); see Dippolito [192 Misc 2d at 397] reminding that in determining a late claim application “the court may examine the proposed causes of action, as well as all submitted papers and exhibits”).

Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court grants the motion to file and serve a late claim.

Claimant is directed to file and serve the proposed claim within forty-five (45) days of the filing of this decision and order, in compliance with Court of Claims Act §§ 11 and 11-a.

July 21, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed June 1, 2009;
  2. Affidavit of Walter Casper III, sworn to January 22, 2009, together with annexed exhibits, including verified proposed claim;
  3. Affidavit in Opposition of Joan Matalavage, sworn to February 5, 2009.