New York State Court of Claims

New York State Court of Claims

PERALTE v. THE STATE OF NEW YORK, #2009-045-010, Claim No. None, Motion No. M-75914


Late claim motion, trip and fall, denied with leave to file new application.

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:
Law Offices of Frederick W. Altschuler By: Daniel P. Trunk, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 18, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation in Support, Claimant’s Affidavit in Support with annexed Exhibits A-N and Defendant’s Affirmation in Opposition. Claimant, Marie Peralte, has brought this motion, for the second time, seeking an order granting leave to file a late claim[1] pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed this application.

In a Decision and Order filed September 23, 2008 this Court addressed claimant’s previous application to file a late claim in this matter. This Court determined that claimant’s proposed claim submitted with that motion failed to comply with Court of Claims Act § 11(b). Thus, this Court was constrained from granting claimant’s original motion. Consequently, this Court denied claimant’s original motion without prejudice to claimant’s ability to file another late claim motion containing a sufficiently crafted proposed claim.

Claimant again alleges that on May 22, 2007 at approximately 10:00 a.m. she was walking across Front Street when she tripped and fell on a defective repair patch located near the northeast corner of Front Street at its intersection with Maple Avenue. Claimant asserts that defendant maintained the area of the accident and was responsible for the defective condition of the repair patch. Claimant has attached photos of the location of the fall to her motion papers. As a result of the fall claimant states that she suffered a left femur midshaft fracture which required surgical intervention.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. The Court again finds it significant that claimant underwent a 50-h hearing on November 21, 2007 conducted by an attorney for the Town of Hempstead regarding the underlying claim. Claimant has also provided photographs which she claims accurately reflect the condition of the roadway on the day of her fall. Thus, after weighing all the circumstances involved in the present action, these factors are again found to be in claimant’s favor.

It is unclear at this point whether claimant has a valid alternate remedy against a private entity or another municipality in Supreme Court. Thus, this factor is again found in defendant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, 12 [Ct Cl 1977]).

The Court again finds that claimant has established, for the purposes of this motion, that her claim is meritorious. Claimant has submitted a new proposed claim with her present motion papers which may arguably comply with Court of Claims Act § 11(b). However, this Court is directing claimant to attach to her proposed claim her affidavit in support together with the attached photographs of the location of her fall. These documents in total shall constitute the proposed claim in this matter.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimant’s application. Thus, the Court hereby grants claimant’s motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim, which shall also include claimant’s affidavit in support and photographs, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a.

March 18, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].The Court notes for the second time that the Court of Claims Act does not provide for the filing of a late “Notice of Claim.”