New York State Court of Claims

New York State Court of Claims
DELACRUZ v. STATE OF NEW YORK, # 2018-018-927, Claim No. NONE, Motion No. M-91480


Late claim application seeking permission to file a claim alleging State's failure to safely transport inmate is denied.

Case information

UID: 2018-018-927
Claimant(s): JOSE DELACRUZ
Claimant short name: DELACRUZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91480
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, P.C.
By: Brian M. Dratch, Esquire
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Kevin A. Grossman, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 6, 2018
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to Court of Claims Act section 10 (6) (Court of Claims Act 10 [6]; CPLR 214 [5]). Defendant opposes the motion.

Movant, an inmate in the custody of the State, filed a claim pro se on December 3, 2015, seeking damages for his personal injuries as a result of striking the seat in front of him while being transported in a Department of Corrections and Community Supervision (DOCCS) van from Watertown Correctional Facility to an outside medical appointment on November 6, 2015. The van was involved in a one-vehicle accident, and Movant alleged that the State was negligent in not using seatbelts to secure him in the van. That claim was dismissed on motion for lack of subject matter jurisdiction because the Attorney General was not served with a copy of the claim.(1) Movant then retained counsel and a new claim was filed on January 6, 2017, but Defendant raised the jurisdictional defense of untimeliness. So Movant now brings this motion seeking permission to serve a late claim for the injuries he sustained in the vehicle accident on November 6, 2015.

Court of Claims Act section 10 (6) requires that the Court, in deciding an application for permission to file a late claim, give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather, it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

The first factor is whether the delay in filing the claim is excusable. Movant argues that he did file a timely claim, but because of his lack of knowledge regarding the legal requirements his claim was dismissed. This is not an acceptable excuse (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650 [3d Dept 2000]).

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Although Movant denied any injuries when he was taken to the infirmary right after the incident, later that evening Movant returned to the infirmary on emergency sick call complaining of pain in his back and neck. This provided the State with some notice that Movant was claiming injuries from the incident during transport that day and along with the Accident/Injury Investigation Report(2) would have presented an opportunity for investigation. The State also received notice in the 2017 claim, a little more than a year after the incident. The State has also not asserted any prejudice if this late claim motion is granted.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).

In the proposed claim, it is alleged that the State was negligent in its operation of the transport van by failing to properly maintain the vehicle, that it was traveling at an excessive rate of speed for the circumstances and conditions existing, negligently, recklessly, and carelessly failing to make timely use of braking mechanisms, steering devices, signals or lights, and failing to give warning of approach by a "horn, bell or word of mouth," failing to yield the right of way to other motor vehicles in traffic, keep a proper look out, obey a stop sign, and in allowing a defective vehicle to be operated on a public roadway. In the proposed claim, Movant asserts he suffered a serious injury as defined in the Insurance Law, by "sustain[ing] serious personal injuries to and about his body and to his nerves and nervous system causing him great pain and discomfort and requiring him to seek medical care and attention and as a result thereof was incapacitated from his usual and normal activities, vocations, avocations so sustained are of a permanent and disabling nature."

Defendant argues that the State did not breach its duty to transport Movant safely, all passengers in the van were seat belted and the driver, by braking and steering to avoid a collision, reacted appropriately to the emergency situation presented by an approaching driver who failed to comply with a stop sign and began entering into the DOCCS van's lane of travel. Defendant attaches the affidavits from the driving officer and the officer sitting in the front passenger seat. Both describe the incident similarly. Defendant also argues that Movant has not adequately pled a serious injury. The Court agrees with Defendant that the proposed claim lacks the appearance of merit for several reasons.

First, Movant has alleged Defendant's negligent operation of the van in swerving and braking hard caused him to be thrown forward and back injuring his back and neck. Accepting the facts Movant has alleged as true, (see Jolley v State of New York, 106 Misc 2d 550, 551-552 [Ct Cl, 1980]), he has failed to show the potential meritoriousness of his claim. Swerving and braking hard does not alone indicate negligence. Defendant has provided the affidavits of both the driver and front seat passenger indicating that an emergency situation presented requiring the immediate evasive action of the officer driving - swerving and braking - and, as a result, a collision was avoided. Other than Movant's bare allegations that the van swerved and the brakes were forcefully applied, there is not a single factual assertion supporting negligence.

The failure of Defendant to employ seatbelts when transporting Movant on December 2, 2015,(3) also does not support the meritoriousness of Movant's proposed claim. The failure to employ the use of seatbelts cannot be used to support a cause of action for Defendant's alleged failure to safely transport an inmate, and evidence of the failure to employ a seatbelt may not be introduced into evidence on the issue of liability (Figueroa v State of New York, UID No. 2003-009-61 [Ct Cl, Midey, J. Dec., 18, 2003], affd 19 AD3d 1053 [4th Dept 2005]).

The Court also agrees with Defendant that Movant has failed to show that he suffered a serious injury as defined by the Insurance Law section 5102 (d). In order to sue for personal injuries arising from the operation of a motor vehicle, the injured party must have suffered a serious injury (Insurance Law 5104). A serious injury is defined as:

"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; a loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment." (Insurance Law 5102 [d]).

The proposed claim merely recites some of the statutory language defining serious injury but does not elaborate with any factual or medical information to support the conclusory assertions. This is insufficient to show the appearance of merit on a late claim application (see Matter of Edwards v State of New York, 119 Misc 2d 355 [Ct Cl, 1983]; Melendez v State of New York, UID No. 2016-049-032 [Ct Cl, Weinstein, J., Aug. 17, 2016]; Bryant v State of New York, UID No. 2015-018-636 [Ct Cl, Fitzpatrick, J., Aug. 13, 2015]; Richards v State of New York, UID No. 2006-036-504 [Ct Cl, Schweitzer, J., March 27, 2006]).

The final factor is whether the Movant has any other available remedy. It does not appear that Movant has another remedy since there is no indiction that the identity of the other driver is known.

Accordingly, upon balancing all of the factors in Court of Claims Act section 10 (6), this Court DENIES the Movant's motion to permit the late filing and service of the proposed claim.

April 6, 2018

Syracuse, New York


Judge of the Court of Claims

The Court considered the following in deciding this motion:

1) Notice of Motion.

2) Affirmation of Brian M. Dratch, Esquire, in support, with exhibits attached thereto.

3) Affirmation of Kevin A. Grossman, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.

4) Defendant's Memorandum of Law in Opposition.

5) Affidavit of Gregory Dandrow, sworn to January 11, 2018, in opposition.

6) Affidavit of George Barker, sworn to January 18, 2018, in opposition.

1. Delacruz v State of New York, UID No. 2016-018-737 [Ct Cl, Fitzpatrick, J., Sept. 26, 2016].

2. See Defendant's Exhibit A (see, generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists.).

3. This position is contradicted by Defendant's submissions, but Movant's position is accepted as true for purposes of this motion.