Opinion
# 2021-040-013 Motion No. M-96429
04-05-2021
WELLINGTON GARCIA v. THE STATE OF NEW YORK
Wellington Garcia, #19-R-0349 LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Pro se Movant's Motion for Permission to serve and file a Claim late granted.
Case information
| UID: | 2021-040-013 |
| Claimant(s): | WELLINGTON GARCIA |
| Claimant short name: | GARCIA |
| 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-96429 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Wellington Garcia, #19-R-0349 |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 5, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Wellington Garcia, to serve and file a late Claim pursuant to Court of Claims Act § 10(6), is granted.
The proposed Claim, attached to the Motion papers, as well as the information set forth in Movant's Affidavit in Support, alleges: on May 31, 2019 at about 9:00 p.m., while Movant was incarcerated at Bare Hill Correctional Facility (hereinafter, "Bare Hill"), he asserts that he was running to retrieve a soccer ball in the "Annex Yard," when his left ankle and leg sank into a big hole in the recreation field caused him to break his leg, which required surgery to fix (proposed Claim, ¶¶ 4, 5). Movant asserts that Defendant failed to properly maintain the Annex Yard recreation field (id., ¶ 2). Movant further asserts that Defendant failed to provide him with prescribed medication and physical therapy (id., ¶¶ 8, 9).
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 negligence cause of action (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on May 31, 2019. The Court concludes that, based upon the information provided in the proposed Claim, 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. Here, Movant asserts that he did not have access to professional legal help and that the law library clerk provided him with incorrect information regarding how and when to file a Claim. Lack of knowledge of the Court's filing requirements is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). In addition, confinement to a correctional facility is not an acceptable excuse for failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). 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., 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. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Letter from Douglas R. Kemp, Esq., Assistant Attorney General, dated March 10, 2021). Those factors, therefore, 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., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true the factual allegations of a Movant. Based upon the entire record, including the proposed Claim, 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, supra at 1036). Movant has provided sufficient 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 forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim against the State of New York, and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his claim, Movant is 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.
April 5, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's application for permission to file a late claim: Papers Numbered Motion, Proposed Claim 1 Letter from Assistant Attorney General Douglas R. Kemp, Esq. 2