Opinion
# 2012-040-084 Motion No. M-81756
10-22-2012
KEVIN BROWN v. THE STATE OF NEW YORK
Synopsis
Motion seeking permission to serve and file a claim late pursuant to CCA § 10(6) granted. Case information
UID: 2012-040-084 Claimant(s): KEVIN BROWN Claimant short name: BROWN 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-81756 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Kevin Brown, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG Third-party defendant's attorney: Signature date: October 22, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, the application of Movant, Kevin Brown, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.
Attached to Movant's affidavit is a copy of his proposed Claim. The proposed Claim alleges that, on June 6, 2010 at approximately 7:15 to 7:20 p.m. at Greene Correctional Facility located in Coxsackie, New York (hereinafter Greene), in the north side recreation yard, Movant stepped into one of the rutted areas during a soccer game on the soccer field, twisting his left knee and causing injury. It is alleged that the State improperly maintained the area, was aware of the dangerous condition of the field and failed to correct it.
This is the second motion Movant has made seeking permission to serve and file a Claim late regarding this incident. By Decision and Order dated December 8, 2011 (Brown v State of New York, UID No. 2011-040-074 [Ct Cl, McCarthy, J., Dec. 8, 2011]), this Court granted Mr. Brown's request and directed that he serve and file the Claim within forty-five (45) days of the date of filing of that Decision in accordance with all the provisions of the Court of Claims Act. While Mr. Brown served and filed the Claim, he failed to do so within the time period required by the Court's decision. The State's motion to dismiss that Claim was granted (Brown v State of New York, UID No. 2012-040-049 [Ct Cl, McCarthy, J., June 28, 2012]).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year statute of limitations). The cause of action accrued on the date of the alleged accident, June 6, 2010. Thus, the statute of limitations has not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also
may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant has failed to offer an excuse. However, 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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together.
The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim or an opportunity to investigate (Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). The State does assert, however, that the delay in filing "has effectively hamstrung the State's investigation" (Affirmation in Opposition of Michael T. Krenrich, Esq., ¶ 14). At best, the statement can be considered an argument that the State might be substantially prejudiced by the delay in filing. However, counsel has submitted only his own conclusory affirmation in this regard. There is no statement from a potential witness indicating that the State attempted an investigation and was unable to do so. The Court concludes that the State will not be substantially prejudiced by the delay in the filing of this motion considering that Movant had timely served and filed a Claim which was dismissed by this Court, as Movant failed to properly serve it upon Defendant in accordance with the Court of Claims Act § 11(a)(i) (see Brown v State of New York, 2011-040-043 [Ct Cl, McCarthy, J., Aug. 22, 2011]). Thus, the Court concludes these factors weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have a possible alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within sixty (60) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Movant is again directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
October 22, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read on Movant's application for permission to file a late claim:
Papers Numbered
Notice of Motion,
Affidavit & Attachments 1
Affirmation in Opposition 2