New York State Court of Claims

New York State Court of Claims
KWAW v. THE STATE OF NEW YORK, # 2021-041-044, Claim No. NONE, Motion No. M-96976


Application to file late claim is granted where claim alleging that defendant's negligence in causing/permitting recurrent flooding of inmate's cell caused inmate to slip and fall resulting in serious injuries has appearance of merit and defendant had prompt notice of circumstances underlying claimant's accident and injuries.

Case information

UID: 2021-041-044
Claimant(s): FRANK KWAW
Claimant short name: KWAW
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-96976
Cross-motion number(s):
Claimant's attorney: FRANK KWAW
Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 17, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, incarcerated at Green Haven Correctional Facility, moves for permission to serve and file a late claim. Defendant opposes the motion.

Claimant's unsworn supporting statement alleges that the incident underlying the claim occurred on January 10, 2021. The claimant's proposed verified claim alleges that he was in a cell subject to persistent flooding from January 5 to January 10, 2021. Claimant further alleges that he complained of the flooding problem to "Sgts., C.O.'s and counselors" before he "slip and fell" and allegedly suffered "spinal cord damage."

Claimant alleges that he has suffered "bilateral leg paralysis" and was confined for two weeks at "Albany Medical" and three weeks at "Greenhaven infirmary."

Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."

The claimant's cause of action alleging "[n]egligence for placing me in an unsafe and unhabitabal cell" arose on January 10, 2021. The application to file a late claim was made on July 14, 2021, slightly more than ninety days after the ninety-day period to serve and file a claim had expired (see Court of Claims Act 10 [3]).

CPLR 214 provides a three-year period to commence an action for negligence and the negligence cause of action is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act 10 (6) provides that:

"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Defendant correctly points out that claimant has failed to offer a reasonable excuse for failing to timely serve and file his claim. However, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).

Defendant does not contest the intertwined issues of notice, opportunity to investigate and prejudice to the defendant. The defendant, through its correction officers and medical personnel, apparently had immediate notice of claimant's accident and an opportunity to investigate the circumstances underlying the proposed claim. Defendant does not dispute that the incarcerated claimant suffered significant injuries and defendant, in the exercise of due diligence, would be expected to, at a minimum, conduct a preliminary investigation of its potential liability for claimant's serious injuries. Additionally, it is alleged without contradiction that claimant pursued a facility grievance related to the incident. Defendant does not suggest that it would be prejudiced in the event late claim relief is granted. These factors weigh in favor of claimant.

Claimant has no alternative remedy.

Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" Sands v State of New York, 49 AD3d 444 [1st Dept 2008]; see Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]; Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."

Defendant has not offered an affidavit disputing the factual allegations of the proposed verified claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

The proposed negligence claim alleges that defendant created and/or had notice of a recurrent dangerous condition in claimant's designated cell and failed to remedy the condition or move claimant to another cell, despite claimant's complaints. The proposed claim demonstrates at least the "appearance of merit."

Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file and serve a late claim.

Claimant is directed to file and serve his claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.

August 17, 2021

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Motion for Permission to File a Late Claim, filed July 14, 2021;

2. Unsworn supporting statement of Frank Kwaw, dated June 30, 2020 [sic];

3. Proposed Claim, verified July 6, 2021;

4. Affirmation in Opposition of Christina Calabrese, dated August 9, 2021.