Claimant's late claim motion, pro se.
|Claimant short name:||PIERRE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Curlan Pierre, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Michael T. Krenrich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 12, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affidavit in Support with attachments and Defendant's Affirmation in Opposition.
Claimant, Curlan Pierre pro se, has brought this motion seeking an order pursuant to Court of Claims Act (CCA) § 10 (6) granting permission to file a late claim. Defendant, the State of New York, has opposed the motion.
Claimant alleges that on August 14, 2019 at approximately 1:00 p.m., he was playing soccer at Altona Correctional facility when he twisted his ankle in a pothole in the grass area of the recreation yard. As a result claimant suffered a broken tibia and fibia in his right leg. Claimant contends that the accident occurred because the grounds were unkept.
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 ). 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 ). 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 does not offer any legally acceptable excuse for the delay in filing the claim. 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. Claimant contends that the correction officers are aware of the condition of the recreation yard because other inmates have been injured in the yard due to potholes. Defendant does not contend that it is prejudiced but argues that the allegations are not specific enough to identify the location of the fall. Thus the Court finds that these factors do not weigh in either party's favor.
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 claimant has failed to establish that the claim is meritorious by his failure to adequately describe the specific location of his accident. Additionally, the Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). The proposed claim sets forth the location of the incident as the grass area of the recreation yard area. The Court notes that the failure to include a specific location of the fall, especially when claimant refers to more than one pothole, runs afoul of the requirements of Court of Claims Act § 11 (b) (Lepkowski v State of New York, 1 NY3d 201 ).
Accordingly, claimant has failed to establish the merit of his claim.
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion to file a late claim is denied without prejudice.
May 12, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims