Late claim relief denied. No proposed claim. No showing of how State was negligent to establish appearance of merit. Pro se inmate claimant asserts he was injured at his work assignment because of faulty hydraulic ramp and negligent actions of a third party delivery truck driver.
|Claimant short name:||HORLBACK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||SANFORD HORLBACK, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||February 2, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion:
1,2 Motion for Permission to File a Late Notice of Intention to File Claim by Sanford Horlback, Claimant, and Notice of Intention to File Claim (attached)
3 Affirmation in Opposition to Motion for Leave to File Late Notice of Intention to File a Claim by Barry Kaufman, Assistant Attorney General
Sanford Horlback, the claimant herein, characterizes his motion as one seeking an order allowing late filing of a notice of intention to file claim. The Court has treated the application as one seeking permission to serve and file a late claim, which is the appropriate practice in the Court of Claims. See Court of Claims Act §10(6).
Mr. Horlback alleges that he was injured at his work assignment when he was atop a hydraulic ramp at the loading area of Downstate Correctional Facility [Downstate] on June 3, 2009. In the notice of intention to file a claim submitted with the motion he writes that a driver of a delivery truck started jumping on the ramp when it became stuck, causing the ramp to drop too quickly and preventing claimant from being able to remove his hands to avoid injuring his fingers on the metal material on the truck. He asserts: "My injuries resulted from the combination of a faulty hydraulic ramp and the negligent actions of a delivery truck driver" from a private company. [Notice of Intention to File Claim, Exhibit A].
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in Court of Claims Act §10(6). The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.
Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . ." Court of Claims Act §10(6) . Here, premised on a date of accrual of June 3, 2009 and a negligence cause of action, the statute of limitations would be three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.
As an initial matter, a motion for late claim relief must contain a copy of the proposed claim(1) , allowing the Court to ascertain the nature of the claim, including the date of accrual. See Court of Claims Act §11-b; 22 NYCRR §206.6. Since no proposed claim is attached, the motion is denied on that ground alone.
More substantively, no excusable delay is advanced. Instead, claimant indicates that the defendant is not prejudiced because of the delay. He states that the State had notice of the essential facts of the claim because he was treated in the medical facility at Downstate for his injury, however receiving medical treatment would not alone advise the State of a potential suit against it, and afford it an opportunity to investigate. Although claimant mentions having filed a grievance concerning the incident, no copy is annexed nor does he describe the nature of the grievance to show that it might serve as notice to the State of a potential suit against it. If he used the same description of the accident as that appended to this motion, what is set forth is the possible negligent acts of third parties, not the State of New York. Thus the closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh against granting claimant's motion.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit, viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. From the facts stated in the attachment to the notice of intention, there is no indication of how the State was negligent. Merely alleging general negligence on the part of the State does not show the appearance of merit for late claim purposes.
Finally, it appears that there may be another remedy available to claimant against the trucking company or its employee, or even the manufacturer of the hydraulic device.
Based on the foregoing, claimant's motion [M-77515] for permission to serve and file a late claim is hereby in all respects denied.
February 2, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Court of Claims Act § 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. . . "