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
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
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 ).
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 ).
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
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
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 ); 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.