Application to file late claim is granted where defendant had notice of inmate slip and fall immediately after incident and fails to controvert allegations of proposed claim or show prejudice from the granting of claimant's application to file late claim.
|Claimant short name:||SWEEPER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||BRUCE SWEEPER
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 16, 2012|
|See also (multicaptioned case)|
Claimant moves for permission to file a late notice of intention to file a claim. Court of Claims Act § 10 (6) makes no provision for filing a late notice of intention to file a claim and the Court will consider the application as a request for permission to file a late claim. Defendant opposes the motion.
The application includes a notice of intention to file a claim, verified September 6, 2011, which the Court will treat as the proposed claim (see Court of Claims Act § 9 ).
The proposed claim alleges that while claimant was an inmate at Clinton Correctional Facility he "fell IN THE BATHROOM COMING OUT OF THE TOILET AREA IN A PUDDLE OF WATER ON THE FLOOR FROM A BROKEN WATER PIPE ON A SINK, THIS PIPE WAS LEAKING WATER FOR SOME TIME THIS WAS NEGLIGENCE FORM THE FACILITY NOT FIXING IT THIS SINK HAD NEED A PART THAT HAD TO BE ORDER FROM THE OUTSIDE."
A similar, though not identical, claim (prior claim) arising from the incident of February 9, 2010 was filed with the Clerk of the Court of Claims on July 20, 2011. Adding further confusion to the instant application is claimant's reply affirmation/affidavit of November 2, 2011 which references an incident of December 25, 2009 in which claimant allegedly suffered a back injury after being ordered to help lift a fellow inmate. The Court will limit its consideration of the late claim application to the allegations contained in the initial motion papers involving water leaking from a pipe since defendant has had no opportunity to respond to the new allegations and relief requested in claimant's reply papers (see Goldstein v Town of Warwick, 87 AD3d 1054 [2d Dept 2011]).
According to the proposed claim, the cause of action arose on February 9, 2010. The application to file a late claim was made on or about September 6, 2011.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "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."
The proposed claim alleges a cause of action sounding in negligence. CPLR § 214 provides a three-year period to commence an action for negligence and the cause of action is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 ).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 ).
Claimant fails to offer a reasonable excuse for the delay in properly filing and serving the claim. The "prior claim," a copy of which is submitted with the claimant's application, alleges that a notice of intention to file a claim was served on the Attorney General on March 30, 2010, within the ninety day period from accrual of the claim. No proof is offered, however, that the notice of intention was served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (1).
Neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002])
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The State appears to have had notice and an opportunity to investigate the circumstances underlying the proposed claim because an "Inmate Injury Report" was prepared on February 10, 2010 identifying the location and alleged cause of the incident. The defendant does not suggest that it would be prejudiced in the event late claim relief is granted. These factors therefore weigh in favor of claimant.
Claimant has no alternative remedy.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Claimant alleges that he was injured due to defendant's negligence in permitting a pipe to continue to leak in a bathroom after knowing, or having reason to know, of the condition. The State's liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The proposed claim, together with the attached exhibits, demonstrates at least the "appearance of merit" of a cause of action for premises liability based upon a dangerous condition (see Dippolito [192 Misc 2d at 397] reminding that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits").
Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file a late claim. Claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.
February 16, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Motion for Permission to File Late Notice of Intention, filed September 26, 2011;
2. Affidavit of Bruce Sweeper, sworn to September 6, 2011, and annexed exhibits;
3. Affirmation of Anthony Rotondi, dated October 18, 2011, and annexed exhibits;
4. Affidavit of Bruce Sweeper, sworn to November 2, 2011, and annexed exhibits.