|Claimant short name:||ZOSYA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. LYNCH|
|Claimant's attorney:||Marina Zosya, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Tamara B. Christie, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 5, 2019|
|See also (multicaptioned case)|
Proposed claimant, an inmate appearing pro se, moves for permission to file and serve a late claim pursuant to Court of Claims Act (CCA) § 10 (6). Defendant opposes the motion.
The proposed claim alleges that at approximately 8:40 a.m. on December 30, 2018, movant slipped and fell on an icy sidewalk covered with a layer of snow in front of her place of work at Albion Correctional Facility (Albion). She alleges she immediately reported the incident to her supervising correctional officer, although there is no evidence of this. Movant first sought medical attention over two weeks later on January 14, 2019 and was found to have a fractured wrist. She alleges that defendant consistently and negligently failed to maintain the sidewalks at the facility and also failed to exchange inmates' worn-out footwear so as to provide traction in winter weather.
"The 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 ). In determining whether late claim relief should be granted, consideration must be given to the six factors enumerated in CCA § 10 (6). The presence or absence of any particular factor is not controlling, nor are the six factors necessarily exhaustive (see Broncati v State of New York, 288 AD2d 172 [2d Dept 2001]). The six statutory factors are as follows:
(1) whether the defendant had notice of the essential facts constituting the claim;
(2) whether the defendant had an opportunity to investigate the circumstances underlying the claim;
(3) whether the defendant was substantially prejudiced by the delay;
(4) whether the delay was excusable;
(5) whether the claimant has any other available remedies; and
(6) whether the claim appears to be meritorious.
A proposed claim which satisfies the pleading requirements of CCA § 11 (b) must accompany any application for late claim relief.
Preliminarily, this motion for late claim relief was filed within the time allowed by law for the action to be brought in another court (see CCA § 10 ; CPLR 214) and is therefore timely made.
The factors of notice, opportunity to investigate and potential prejudice to the defendant are interrelated and may be considered together (see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, J., June 17, 2013]). Here, defendant does not attempt to argue the factors of notice of the essential facts, opportunity to investigate or prejudice and they are resolved in favor of movant.
Movant argues that her lateness in bringing her claim is due to her ignorance of the law. It is well settled, however, that ignorance of the law is not an acceptable excuse for the delay in filing a claim (see Borawski v State of New York, 128 AD3d 628 [2d Dept 2015].
Movant does not appear to have another remedy available to her and this factor weighs in her favor.
Turning to whether the proposed claim has merit, 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" (Taormina v State of New York, UID No. 2017-032-005 [Ct Cl, Hard, J., Feb. 7, 2017], quotation and citation omitted; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 ; Preston v State of New York, 59 NY2d 997 ). However, the State "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137 [3d Dept 2008]). When an alleged dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition (see Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]; Seaman v State of New York, 45 AD3d 1126 [3d Dept 2007]). "To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
Here, there is no evidence or allegation that defendant had actual or constructive notice of a dangerous condition. On the contrary, the affidavit of Captain Richard Goodman, a corrections officer at Albion responsible for oversight of inmates and other correction officers since May 2015, states that there were no reports of falls or hazardous conditions in the incident area, or on any other exterior walkways or sidewalks at Albion, prior to movant's alleged fall at 8:40 a.m. on December 30, 2018 (see defendant's exhibit B).
As for movant's claim that worn-out footwear contributed to her alleged fall, the affidavit of Maria Vaillancourt, a Stores and Mail Supervisor at Albion demonstrates that movant was provided with a new pair of boots on January 17, 2018 and that all inmates may request a boot review six months after being issued new boots, or anytime thereafter (see defendant's exhibit A). If the boots are found to be excessively worn, the State provides new boots. Movant never requested a boot review or new boots.
In sum, movant has failed to make a sufficient showing of merit. Although no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see McLoughlin v State of New York, 63 Misc 3d 1216(A) [Ct Cl 2019]).
Therefore, based on the foregoing, movant's motion for late claim relief is denied.
December 5, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on movant's motion for late claim relief:
1. Notice of Motion, Affidavit in Support with Exhibits.
2. Attorney Affirmation.