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
pursuant to Court of Claims
Act (CCA) § 10(6). Defendant, the State of New York, has opposed this
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
). 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 ). 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
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.