New York State Court of Claims

New York State Court of Claims
GREEN v. THE STATE OF NEW YORK, # 2018-045-030, Claim No. None, Motion No. M-91996


Motion to file a late claim, trip and fall on the cut-off sign on the sidewalk. State agency report and police report do not provide notice of the essential facts of the claim.

Case information

UID: 2018-045-030
Claimant(s): PETER GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-91996
Cross-motion number(s):
Claimant's attorney: Davis & Ferber, LLP
By: Cary M. Greenberg, Esq.
Defendant's attorney: Hon. Barbara D. Underwood, Attorney General
By: Antonella Papaleo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 25, 2018
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Attorney's Affirmation; Claimant's Affidavit with Annexed Exhibits A-M; Defendant's Affirmation in Opposition with annexed Exhibits A and B; and Claimant's Reply Affirmation.

Claimant, Peter Green, has brought this motion pursuant to Court of Claims Act (CCA) 10 (6) seeking an order granting permission to file a late claim(2) . Defendant, the State of New York, opposes the motion.

It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act 10 (6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA 11, shall accompany any late claim application.

Claimant alleges that on March 19, 2017 at approximately 11:30 a.m., he stepped on a broken metal pole protruding from the sidewalk in front of 12250 Route 25, Mattituck, New York. On that date claimant reported the incident to the Town of Southold Police Department. The New York State Department of Transportation (DOT) was then notified to fix the condition. DOT employees responded to the location of the damaged sign, secured the sign, placed a barrel at the broken post and forwarded the information to the DOT sign crew to conduct a permanent repair of the sign. Claimant sought medical treatment on March 21, 2017 and March 23, 2017 at Peconic Bay Medical Center. Claimant testified at a 50-h hearing conducted by the Town of Southold on September 14, 2017 regarding the subject incident. Claimant initially brought actions against the Town of Southold and the County of Suffolk. On September 26, 2017 claimant was informed by the Town of Southhold that defendant maintains all the street signs on Route 25.

Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that a claimant's mistaken belief that a roadway or sidewalk upon which an accident occurred may have been a County, Village or Town roadway or sidewalk rather than a State roadway or sidewalk does not constitute a reasonable excuse for the delay in filing a claim against the State (Gatti v State of New York, 90 AD2d 840 [2d Dept 1982]; Erca v State of New York, 51 AD2d 611 [3d Dept 1976]; affd 42 NY2d 854 [1977]). Additionally, an attorney's failure to timely and properly investigate a claim, in effect, constitutes law office failure, which is not an acceptable excuse (Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]). However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Generally, an agency report does not provide defendant with knowledge of the essential facts constituting a claim (Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]; D'Agostino v City of New York, 146 AD3d 880 [2d Dept 2017]; Quilliam v State of New York, 282 AD2d 590 [2d Dept 2001]). Here the DOT agency report and the Town of Southold police report forwarded to DOT do not connect any injuries sustained by claimant to any negligent conduct on the part of defendant. Thus, it was not sufficient to provide defendant with actual notice of the essential facts constituting the claim (id.). Nevertheless, defendant did respond to and temporarily remedy the defective condition on the date of claimant's accident. Defendant has also provided DOT repair records for the location through a FOIL request and in opposition to claimant's motion. Additionally, claimant provided testimony concerning the accident at a 50-h hearing held by the Town of Southold on September 14, 2017. Claimant's medical record on March 21, 2017 and March 23, 2017 from Peconic Bay Medical Center is presumably preserved for review. Defendant has thus been minimally prejudiced by the delay in filing the claim. As a result, the Court finds that, given the entirety of the circumstances involved in the present action, these factors weigh in favor of claimant's application.

It does not appear as though claimant has an alternative remedy in this matter. Thus, this factor is found in claimant's favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

The Court finds that, for the purposes of this motion, the claim has merit to proceed.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act 10(6), the Court finds that the factors favor claimant's application. Thus, the Court hereby grants claimant's motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim(3) , together with payment of the appropriate filing fee, pursuant to Court of Claims Act 11 and 11-a.

July 25, 2018

Hauppauge, New York


Judge of the Court of Claims

2. Claimant mistitled his motion as one for permission to file a late "notice of intention." The CCA does not provide for permission to file a late notice of intention. CCA 10 (6) only provides for the filing of a late claim. Since all parties treated the motion as one for permission to file a late claim and there was no prejudice to defendant the Court treated the motion as properly seeking permission to file a late claim.

3. Claimant is directed to amend the title of the proposed claim (Cl Exh A) as a claim prior to filing and serving the document.