Motion for late claim relief pursuant to Court of Claims Act § 10 (6) is granted.
|Claimant short name:||NEAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Ryanne Konan Law Office
By: Ryanne Konan, Esq.
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 30, 2018|
|See also (multicaptioned case)|
Movant seeks permission to file and serve a late claim alleging negligence. The proposed claim alleges that, on June 28, 2015, movant was injured while working in the mess hall at Wallkill Correctional Facility. Movant, an inmate cook, sustained burns on his face and lips when a fellow inmate removed the lid of a kettle, causing water to splash on claimant's face. Movant alleges that the inmate was not properly trained and should not have been allowed to work in the mess hall unsupervised. Defendant opposes the motion. For the reasons stated below, the Court grants movant's motion for permission to file and serve a late claim.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (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 state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept. 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept. 1986]).
First, the Court must determine whether movant's cause of action is timely under CPLR Article 2. The proposed claim states a cause of action for negligence. For claims alleging negligence, the accrual date is the date that claimant sustains an injury (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94  [citations omitted]). Here, claimant sustained injuries on June 28, 2015. Pursuant to CPLR 214, the statute of limitations applicable to causes of action for negligence is three years. Accordingly, movant was required to file the instant late claim application no later than June 28, 2018. Because the instant motion was filed on February 23, 2018, it is timely under CPLR Article 2.
The first factor to consider is whether the delay in filing and serving the claim is excusable. Movant attributes the delay to this Court, as movant previously filed the instant proposed claim with the Court, and the Court dismissed the previously filed claim for movant's failure to timely file and serve the claim in accordance with Court of Claims Act § 11 (a) (i) (see Neal v State of New York, Claim No. 129883, Motion No. M-90786 [Ct Cl, Hard, J., Feb. 13, 2018]). The Court finds that claimant's failure to timely file and serve the previously filed claim is not a valid excuse. Thus, the Court finds that the first factor does not weigh in movant's favor.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Movant argues that a notice of intention to file a claim was served on defendant on September 15, 2015, thus defendant had notice of the essential facts of the claim and an opportunity to investigate. Defendant concedes that it received the notice of intention, as well as the previously filed claim, and therefore had notice and an opportunity to investigate. However, defendant argues that three years have elapsed since the accident in question, and it will be prejudiced if the Court were to grant the instant application. Movant states that he filed a grievance concerning the accident, but does not state whether an investigation took place. Thus, the Court finds that while the factors of notice and an opportunity to investigate weigh in favor of granting the application, the factor of prejudice to defendant weighs against granting the application.
Movant states that he has no other available remedy, and defendant does not allege otherwise. Thus, the Court finds that this factor weighs in favor of granting the application.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that the claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "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 [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Initially, defendant argues that the proposed claim is defective because it is not sworn to by movant. Movant's counsel verified the claim instead of movant, as "[movant] resides in Bronx County, and does not reside within the County their attorney's office is located" (see Proposed Claim [Exhibit E]). Under CPLR 3020 (d) (3), verification may be made by an attorney if the party "is not in the county where the attorney has his office[.]" Court of Claims Act § 11 (b) requires that notices of intention to file a claim and claims "be verified in the same manner as a complaint in an action in the supreme court." Thus, the Court finds that the attorney's verification of the proposed claim instead of movant in accordance with CPLR 3020 does not render the claim legally defective (see Rizzo v State of New York, 2 Misc 3d at 834).
As to the merit of the allegations contained in the proposed claim, defendant only argues that movant failed to demonstrate the appearance of merit. The Court disagrees. "To establish a cause of action sounding in negligence, [movant] must establish the existence of a duty on defendant's part to [movant], breach of the duty and damages" (Greenberg, Trager & Herbst, LLP v HSBC Bank USA, 17 NY3d 565, 576 ; accord Korsinsky v Rose, 120 AD3d 1307, 1309 [2d Dept. 2014]). The proposed claim alleges that defendant's employees owed a duty to movant, and that the defendant's employees breached said duty by allowing an untrained and unsupervised inmate work in the mess hall, causing movant to suffer damages. Overall, movant's submissions satisfy the minimal burden of showing that his cause of action sounding in negligence is not "patently groundless, frivolous or legally defective" (Rizzo v State of New York, 2 Misc 3d at 834; see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, P.J., June 17, 2013]). Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows movant to file and serve the proposed late claim against defendant.
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-91901) is granted and movant is directed to file and serve a verified claim identical to the claim provided in support of this motion, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
August 30, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated February 15, 2018; and Affirmation in Support of Motion, affirmed by Ryanne Konan, Esq. on February 15, 2018, with Exhibits A through E annexed thereto.
2. Affirmation in Opposition to Movant's Motion to File a Late Claim, affirmed by Thomas R. Monjeau, AAG on April 13, 2018.