Opinion
# 2012-010-003 Motion No. M-80758
01-23-2012
MOISES v. THE STATE OF NEW YORK
Synopsis
Movant's late claim application denied - no appearance of merit. Case information
UID: 2012-010-003 Claimant(s): TEJADA MOISES Claimant short name: MOISES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80758 Cross-motion number(s): Judge: Terry Jane Ruderman TEJADA MOISES Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Elyse Angelico, Assistant Attorney General Third-party defendant's attorney: Signature date: January 23, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-3 were read and considered by the Court on movant's application to serve and file a late claim:
Notice of Motion, Movant's Supporting Affidavit, Proposed Claim.......................1
Affirmation in Opposition and Exhibits...................................................................2
Affidavit in Reply......................................................................................................3
Movant seeks leave to serve and file a late claim alleging that, during his incarceration at Sing Sing Correctional Facility, on May 4, 2011, he fell down the stairs in housing block A in the auxiliary kitchen basement and sustained a torn tendon in his right hand. Movant asserts that defendant negligently maintained the stairs as they were "extremely wet with no wet floor signs and the lights around and leading down the stairs were inoperable" (Proposed Claim, ¶ 4). Movant further contends that defendant's employee and movant's work supervisor, Mr. O'Brien, encouraged movant to proceed down the steps in worn-out sneakers despite his expressed concerns of wetness and darkness. Additionally, movant contends that defendant failed to provide him with proper footwear. In support of his application movant submitted only his own affidavit.
In opposition to movant's application, defendant submitted a copy of Moises v State of New York, Claim No. 120397 (regarding this incident), which was untimely served upon defendant in September 2011 (Defendant's Ex. B). Defendant raised in its answer the affirmative defense of lack of jurisdiction (Defendant's Ex. C). Months later, claimant brought this late claim application. Defendant includes a copy of the grievance filed regarding the incident wherein it was noted that movant did not report his injury until May 5, 2011 and the grievance was denied (Defendant's Ex. E).
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 claimant 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).
The Court has considered the above six factors. Movant's purported excuse for his delay is ignorance of the law, which is not a valid excuse (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413, 414 [ignorance of the law is not a valid excuse for delay]). Nonetheless, this is but one factor to be considered. The most significant factor is the appearance of merit of the proposed claim. 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; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). This burden is not the same proof movant would have to meet at trial.
To prevail at trial, movant would have to show the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Birthwright v Mid-City Sec., 268 AD2d 401; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). Indeed, it is well established that while the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997), 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; Condon v State of New York, 193 AD2d 874). Moreover, a claimant is bound to see that which is readily observable with a proper use of the senses and there is a duty to conduct oneself accordingly (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475 [if alleged condition described by plaintiff as "very wet with standing water pooling in spots" was open and obvious, then it is a factor to be considered in assessing plaintiff's comparative negligence in failing to avoid the condition]; Stasiak v Sears, Roebuck & Co., 281 AD2d 533 [complaint dismissed in slip and fall case where plaintiff could have easily observed puddle of spilled paint]). Indeed, when inmates fail to use ordinary care and pursue a dangerous course of conduct, they must take responsibility for their own negligence (see Carter v State of New York, 194 AD2d 967).
Here, the Court finds that movant failed to meet his burden of showing an appearance of merit of his proposed claim. "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Notably, there was no report of inmate injury form completed on the date of the alleged fall and the grievance report indicates that movant did not report his fall until May 5, 2011. There were no witnesses' statements or any medical reports establishing that movant sustained the injuries he alleges as a result of the fall (see Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]). Movant's unsupported self-serving affidavit regarding the conditions alleged to have been a contributing factor in the cause of his fall is insufficient to establish the appearance of merit of his claim (see Klingler v State of New York, 213 AD2d 378 [claimants' unsupported opinion does not suffice to establish merit of their claim]; 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]).
Additionally, where the alleged condition is transitory and there have been no reports submitted to show that defendant timely investigated the accident, movant's delay substantially prejudices defendant in its inability to investigate the circumstances underlying the claim (see Nicometti v State of New York, 144 AD2d 1036 [delay was inexcusable and prejudiced the State because it had not investigated the accident]; see also 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]).
Accordingly, upon weighing all the factors, movant's motion for leave to file a late claim is DENIED (see Matter of Gallagher v State of New York, 236 AD2d 400, supra).
January 23, 2012
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims