New York State Court of Claims

New York State Court of Claims

BECKERMAN v. THE STATE OF NEW YORK, #2009-044-500, Claim No. None , Motion No. M-75646


Court granted motion for permission to late file for injuries incurred when student fell on an icy campus walkway.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1. The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
McBREEN & KOPKOBY: Evan Gewirtz, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late “Notice of Claim”[2] to recover for injuries allegedly incurred when, as a student at State University of New York at Binghamton (Binghamton University), she fell on an icy walkway. Defendant State of New York (defendant) opposes the motion. A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). The applicable statute of limitations for negligence is three years from the date of accrual (see CPLR 214 [5]). Claimant’s cause of action accrued on February 13, 2008, the date of her fall. Accordingly, this motion mailed on October 7, 2008 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant has failed to set forth any excuse for her delay in timely serving a notice of intention or timely filing and serving a claim in this matter. Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations.[3] On February 14, 2008, claimant reported her fall and the resulting injuries to Binghamton University Police Officer L. Putrino who prepared a written report.[4] Clearly, defendant had notice of the incident, and this factor therefore weighs in favor of claimant.

Defendant argues that claimant’s delay has effectively denied the State an opportunity to investigate the accident, and as a result, it will suffer substantial prejudice in its defense of this matter. Defendant’s contention is without merit. Although there was a several-month delay in making this motion, defendant received notice of claimant’s fall on the day after the incident, and could have conducted an investigation of the area at that time. Moreover, given the nature of the allegedly dangerous condition – the existence of ice on an outdoor walkway – it was not only possible, but likely that the dangerous condition would disappear during the 90-day period immediately following claimant’s accident (Ramos v State of New York, Ct Cl, July 24, 2008, Schaewe, J., Claim No. None, Motion No. M-74805 [UID # 2008-044-564]). Thus, the two factors of the opportunity to investigate the incident and the lack of substantial prejudice to defendant weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy.[5] The accident took place at one of defendant’s university campuses and was caused by an allegedly defective or dangerous condition. Based upon these allegations and the apparent lack of involvement of any third party, it appears that the only remedy available to claimant is an action in the Court of Claims. Accordingly, this factor also weighs in favor of claimant.

The issue of whether the proposed claim appears meritorious[6] is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant 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 claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [1992]).

The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, supra at 837).

In her proposed claim,[7] claimant alleges that while walking from her class to her car, she “slipped and fell on an icy pathway that was improperly and negligently cleared” (Claimant’s Motion for Leave to File a Late “Notice of Claim”, Exhibit 1). In further support of this motion, claimant has attached a copy of the written report prepared by Officer Putrino. Claimant apparently told Officer Putrino that she slipped on “black ice” and that she “could tell [that the walkway] had just been plowed by the markings on the edge of the path.” Although claimant may have difficulty establishing that defendant in fact created said dangerous condition, or that the condition existed for a sufficient time to constitute constructive notice, her allegations are sufficient to establish that the claim is not patently groundless. Accordingly, the factor of merit also weighs in claimant’s favor.

The Court finds that five of the six factors, including the most crucial factor of merit, weigh in claimant’s favor. Claimant’s motion for permission to late file a claim is granted. Claimant is directed to serve a claim containing the information required by Court of Claims Act § 11 (b) upon the Attorney General, and to file said claim with proof of service with the Clerk of the Court of Claims, all within 30 days from the date of filing of this Decision and Order. The service and filing of the claim shall be performed pursuant to the strict requirements of the Court of Claims Act.

January 13, 2009
Binghamton, New York

Judge of the Court of Claims

The following documents were read on claimant’s motion:

1) Notice of Motion filed on October 7, 2008; Affidavit of Fallon P. Beckerman sworn to on September 30, 2008; Affirmation of Evan Gewirtz, Esq., dated October 7, 2008, and attached exhibits.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 7, 2008.

3) Affirmation of Evan Gewirtz, Esq., in reply to defendant’s opposition, dated November 11, 2008.

[2]. Although claimant has used the incorrect terminology for practice in the Court of Claims, she clearly seeks leave to file and serve a late claim. Accordingly, the Court will treat the “Notice of Claim” – attached to her motion papers as Exhibit 1 – as a proposed claim, and will refer to it as such throughout this Decision and Order.
[3]. Defendant surprisingly does not address the statutory factors of whether defendant had notice of the condition, whether claimant has an alternate remedy or whether there is merit to the proposed claim, but merely “defers to the Court’s discretion in ascertaining whether movant has addressed [these] factors” (Affirmation in Opposition of Assistant Attorney General [AAG] Roberto Barbosa, dated Nov. 7, 2008, ¶ 9).
[4]. Claimant’s Motion for Leave to File a Late Notice of Claim, Exhibit 2.
[5]. See n 3, supra.
[6]. See n 3, supra.
[7]. Defendant indicates that it did not receive a copy of the proposed claim with the motion papers. Counsel for claimant asserts that any failure to include the copy was inadvertent, and has since provided defendant with the document. Because defendant has not provided any additional response, the Court infers that the State has no further argument concerning the merit of the proposed claim (see n 3, supra).