Late claim application
|Claimant short name:||HAMLET|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||ANTHONY HAMLET
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Elyse Angelico, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 18, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Movant's Supporting Affidavit and Exhibits.............................1
Affirmation in Opposition and Exhibit.....................................................................2
Movant seeks leave to serve and file a late claim alleging that on October 28, 2009, during movant's incarceration at Sing Sing Correctional Facility, movant fell on a concrete step which broke away as he stepped down and thereby caused him to fall and sustain injuries to his knee. The step was located on the stairs in the tunnel leading to A-Block yard.
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).
Movant's purported excuses for his failure to timely serve and file a claim is that he is proceeding pro se and that, due to his transfer to another facility, he did not have access to the law library and his medication regime was disrupted causing his multiple sclerosis symptoms to worsen and rendered him unable to write or type (Movant's Ex. B). Preliminarily, it is noted that movant's transfer did not occur until January 22, 2010, almost three months after the October 28, 2009 incident (Movant's Ex. A). Movant did not present any excuse for his failure to timely commence an action prior to his transfer. In any event, ignorance of the law is not a valid excuse and movant did not establish his incapacity to contact an attorney on his behalf (see Quilliam v State of New York, 282 AD2d 590; Nyberg v State of New York, 154 Misc 2d 199). Additionally, claimant's confinement in a correctional facility is not an acceptable excuse for his delay (see Matter of Robinson v State of New York, 35 AD3d 948).
The Court has considered all of the factors under Court of Claims Act §10(6) and finds that, most significantly, movant failed to establish the appearance of merit of his proposed claim and that this factor weighed heavily in the Court's determination of whether to grant his application (see Langner v State of New York, 65 AD3d 780 [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199, supra; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While the State has a duty to maintain its facilities in a reasonably safe condition, the State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Preston v State of New York, 59 NY2d 997; Condon v State of New York, 193 AD2d 874).
Here, movant did not submit an incident report, a witness statement, or any other evidence establishing that the alleged condition on the date of the accident was attributable to defendant's negligence and a proximate cause of his injuries (see Pagano v New York State Thruway Auth., 235 AD2d 409 [claimants did not submit evidence that roadway was not designed or maintained in accordance with the applicable construction standards and thus failed to establish appearance of merit]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). It is also noted that merely submitting a photograph of the alleged accident site would not establish the appearance of merit of the proposed claim (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine-month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; see also Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" and movant's own unsubstantiated allegations do not show an appearance of merit (Witko v State of New York, 212 AD2d 889, 891). Finally, movant's delay has substantially prejudiced defendant because the State was not afforded the opportunity to timely investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because they had not investigated the accident]).
Upon careful consideration, the Court DENIES movant's application to serve and file a late claim (see Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400, supra).
June 18, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims