New York State Court of Claims

New York State Court of Claims
DRAKE v. THE STATE OF NEW YORK, # 2021-054-003, Claim No. NONE, Motion No. M-95658


Late claim application denied inmate fell in a collapsing chair, no appearance of merit

Case information

UID: 2021-054-003
Claimant(s): WALLACE DRAKE
Claimant short name: DRAKE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-95658
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, PC
By: Brian Dratch, Esq.
Defendant's attorney: HON. LETITIA JAMES
Attorney General for the State of New York
By: Rachel Zaffrann, Deputy Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 10, 2021
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movant's late claim application:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits(1) ........................1

Attorney's Affirmation in Opposition and Exhibit(2) ...................................................2

Reply Affirmation.....................................................................................................3


A Notice of Intention to File a Claim was served upon the State and received in the office of the attorney general on February 20, 2018 (Movant's Ex. B). The Notice of Intention to File a Claim alleged that at approximately 10:15 am on November 17, 2017, during movant's incarceration at Sing Sing Correctional Facility, movant was sitting in a chair that was "approved" by the State for the purposes of sitting while talking on the telephone on the south side of building five (id.). The chair's legs allegedly collapsed and movant fell to the ground and sustained injuries. A grievance was filed with the New York State Department of Corrections and Community Supervision on November 18, 2017 (Movant's Ex. F). The grievance provided:

"[o]n 11/17/17 approximately 10:15 am or 10:20 am, I was using the 1st telephone on the south side of Bldg.#5 while sitting in an approved chair that's for inmates to use while using the telephone. And on that day and time, I fell to the ground on my back due to the legs on the chair clasping [sic] which cause me to hurt my left shoulder due to still holding on to the receiver with my left hand...had I known the chair was in such bad condition I would of never sat in the chair; and I would of never hurt myself. Officer R. Benjamin was present when this incident occurred. End of grievance"


After conducting an investigation of the grievance, the State reported:

"[g]rievant does not state how the chair gave out or what caused the chair t [sic] give out. Although he mentioned an officer present during the incident he does not state what the officer saw. Nor does grievant state how long he was in the chair before it gave out, who was in the chair before him, how long the chair was in that location, etc. ... It is impossible to provide a thorough investigation without grievant providing all the necessary facts."

(State's Ex A). Movant appealed the decision. The appeal was denied.

Claim No. 133562 was filed with the Court on August 30, 2019 and served upon the State on September 4, 2019 (Movant's Ex. D). The claim alleged that the chair collapsed "without warning" (id. at 2). The claim further alleged that the collapse of the chair was due to the State's negligent maintenance. Specifically, it was alleged that the State failed to remove the chair and permitted the chair to remain in use when the State "had knowledge that the chair was a dangerous condition" (id. at 3). By Decision and Order of this Court filed March 2, 2020, the State's unopposed motion to dismiss the claim was granted on the ground that the Notice of Intention to File a Claim was untimely served and therefore the claim was untimely (Movant's Ex. E).

Movant now brings the instant late claim application based upon the same allegations set forth in the claim (Movant's Ex. H). The State opposes the application.

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 Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

The Court has considered all the relevant factors. With regard to the delay, movant argues that "he did everything in his power" to effectuate timely service of his Notice of Intention to File a Claim. Yet, "for some unknown reason" the Notice of Intention to File a Claim was not received by the attorney general's office until February 20, 2018, three weeks after movant deposited it in the mailbox at Coxsackie Correctional Facility on January 31, 2018 (Second Amended Affirmation of Movant's Counsel, 9; Movant's Ex. C). To the extent that movant argues that the Court may infer that the untimely service of movant's Notice of Intention to File a Claim was attributable to a failure by the State to timely process movant's mail, such argument is unsubstantiated and thus does not relieve movant of the statutorily mandated jurisdictional requirements regarding service (see Young v State of New York, 138 AD3d 1357 [3d Dept 2016] [Claimant's arguments that the deficiencies in service were the fault of prison officials who failed to mail the claim in a timely and proper manner were not substantiated]).

The factors of notice, an opportunity to investigate, and prejudice are all interrelated and will be considered together by the Court. Movant argues that his untimely Notice of Intention to File a Claim provided the State with prompt notice and an opportunity to investigate the underlying facts of his proposed claim. Movant also argues that the grievance that he filed on November 18, 2017 also provided the State with notice of the essential facts of the proposed claim and an opportunity to investigate. The State's opposition to movant's arguments is persuasive. As expressly noted in the State's report issued after conducting an investigation of movant's grievance, the Court finds that the absence of significant details in the grievance filed by movant stymied the State's ability to conduct a useful investigation of the underlying facts in a timely manner.

While movant may not have another available remedy, it would be futile to grant his late claim application absent a showing of an appearance of merit of his claim (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ).

Movant submits his own affidavit wherein he states that the State provided him with a chair that collapsed "without warning" (Movant's Ex. A). Movant's counsel argues that "[d]iscovery can certainly establish that defendant knew that the chair was defective or dangerous" (Second Amended Affirmation of Movant's Counsel, 11). The arguments of movant's counsel are speculative and are not a proper basis for establishing an appearance of merit of the proposed claim (see Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999] [Court of Claims erred in holding a late claim application in abeyance and sua sponte ordering pre-claim discovery for the purposes of ascertaining whether facts supporting a cause of action actually existed]). Notably, movant did not submit an incident report, a witness statement or a photograph of the chair to show how the State was negligent in causing or contributing to the movant's accident. Movant also did not submit any medical records showing that he sustained an injury from his alleged fall due to a collapsing chair. Movant's unsubstantiated assertions are self-serving and conclusory. Thus, the Court finds that movant's submissions are insufficient to establish an appearance of merit of movant's allegations that the State was negligent and that such negligence was a proximate cause of his injuries (see Pennie v McGillivary, 15 AD3d 639 [2d Dept 2005] [The testimony of plaintiff and her witness was insufficient to establish that defendant either created a dangerous condition or had actual or constructive notice of the alleged defect which caused plaintiff to fall]).

In sum, upon weighing all the factors, the Court finds that movant has not made a sufficient showing to warrant granting his late claim application (see Hyatt v State of New York, 180 AD3d 764 [2d Dept 2020] [Late claim application was properly denied where movant did not proffer any evidence tending to substantiate movant's conclusory allegations that the State was negligent and how the State's alleged negligence contributed to the accident]; Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [Movant's conclusory allegations were not enough to show an appearance of merit of movant's proposed allegations]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [Late claim application denied where the excuse was inadequate and the proposed claim was of questionable merit]).

Accordingly, movant's late claim application is DENIED.

February 10, 2021

White Plains, New York


Judge of the Court of Claims

1. Movant's attorney submitted a Second Amended Affirmation in Support and Exhibits to correct the typographical errors and references to the exhibits in the previously submitted Attorney's Supporting Affirmation and Exhibits.

2. The State's initial submission of Exhibit A was incomplete and was thereafter corrected by a subsequent submission of Exhibit A.