Claimant moves for permission to file a late “Notice of
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 ). The applicable statute of limitations for negligence is three
years from the date of accrual (see CPLR 214 ). 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 ).
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
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
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or
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
On February 14, 2008,
claimant reported her fall and the resulting injuries to Binghamton University
Police Officer L. Putrino who prepared a written
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
Another factor to be considered is whether claimant has any other available
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
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 ). 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.
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 ).
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
; Basso v Miller, 40 NY2d 233 ; see also Clairmont v State
of New York, 277 AD2d 767 , lv denied 96 NY2d 704 ). 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 ; Mercer v City of New York, 223 AD2d 688 ,
affd 88 NY2d 955 ). 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,
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.
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,