New York State Court of Claims

New York State Court of Claims
AUSTIN v. THE STATE OF NEW YORK, # 2021-054-035, Claim No. NONE, Motion No. M-96588


Work injury at facility; incarcerated person granted late claim relief.

Case information

UID: 2021-054-035
Claimant short name: AUSTIN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-96588
Cross-motion number(s):
Claimant's attorney: HELD & HINES, LLP
By: Philip M. Hines, Esq.
Defendant's attorney: HON. LETITIA JAMES
Attorney General for the State of New York
By: Elizabeth Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 3, 2021
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:

Notice of Motion, Attorney's Supporting Affirmation, Movant's Affidavit and Exhibits.......................................................................................................................1

State's Letter Dated July 9, 2021, Taking No Position on the Motion.....................2

Movant seeks leave for permission to serve and file a late claim pursuant to Court of Claims Act 10 (6). The proposed claim alleges that on September 21, 2018, during movant's incarceration, movant was working in the Industrial Pallet Shop at Otisville Correctional Facility when, at approximately 9:10 a.m., movant was struck by a nail gun that was being carried by another incarcerated person. A metal nail lodged into the back of movant's left hand. Movant was taken to Montefiore Hospital where an x-ray revealed a nail imbedded in movant's left hand and surgery was performed to remove the nail. Movant continued to experience pain and received occupational therapy. A CT scan on May 8, 2019 at Putnam Hospital revealed a bony defect suggestive of a fracture of the ulnar side of movant's left hand. On August 28, 2019, surgery was performed at Montefiore Hospital to remove a metallic foreign object and bone fragments and adhesions of the long extension tendon. Movant continued to experience pain and swelling and an MRI on January 13, 2020 revealed that the third extensor tendon was disrupted indicative of a partial tear of the third extensor tendon. A second surgery is planned, but has not yet been scheduled. Movant continues to experience pain and swelling.

The proposed claim further alleges that movant's injuries, pain and suffering were caused by the negligence of the State. Specifically, it is alleged that the Department of Corrections and Community Supervision (DOCCS) was negligent in the hiring, training and supervising of its officers who failed to protect movant from foreseeable harm by not having adequate safety procedures, training and supervision in the Industrial Pallet Shop and not having a safety apparatus on the nail gun. In support of his application, movant submits his own affidavit and DOCCS's records regarding the incident, movant's injuries, and medical care (Ex. C). Movant also submits a copy of the Notice of Intention to File a Claim that he timely and properly served upon the State on November 17, 2018 (Ex. A). The Notice of Intention to File a Claim, however, incorrectly sets forth the date of occurrence as September 17, 2018 instead of September 21, 2018.

The State takes no position on movant's application.


The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

The Court has considered all the relevant factors and notes that the State has indicated that it takes no position on movant's application.

Movant's purported excuses for the delay is that he did not consult with an attorney until September 1, 2020, whereupon it was discovered that the Notice of Intention to File a Claim, which was prepared by movant pro se, asserted the wrong date of the occurrence and was therefore a nullity which did not extend the time within which to serve and file a claim. Accordingly, movant's counsel brought the instant late claim application before the expiration of the statute of limitations on the proposed claim (CPLR 214). Movant's counsel further indicates that there were delays associated with the pandemic.

While the Court is mindful of the difficulties presented by the pandemic, the Court notes that attorneys and pro se litigants have continued to timely commence claims during the pandemic. Additionally, ignorance of the law is not a reasonable excuse and movant has not established that the pandemic prevented him from timely consulting with an attorney (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015] ["ignorance of the law was not excusable"]; Cabral v State of New York, 149 AD2d 453, 629 [2d Dept 1989] [A claimed hospitalization without supporting documentation and a lack of knowledge of the statutory time requirements for commencing an action in the Court of Claims did not constitute a reasonable excuse for delay]). Accordingly, the Court finds that movant has not demonstrated a reasonable excuse for the delay; however, this is but one factor to be considered and it is not a determinative factor (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 [2d Dept 2011]).

Next, the Court considers the factors of whether the State had notice and an opportunity to investigate the essential facts and circumstances underlying the proposed claim and whether the State has suffered substantial prejudiced from movant's delay. Here, movant submits documentary evidence indicating that movant immediately reported the incident to the State employee supervising movant and that movant was transported by the State to a hospital for medical care necessitated by the incident (Ex. C). Thereafter, movant timely served the State with a Notice of Intention to File a Claim, albeit with an incorrect incident date. Under the particular circumstances of this matter, the timely served notice of intention was indicative of movant's intention to seek legal redress against the State based upon the incident and injuries which were documented by the State as occurring at its facility on September 21, 2018. Thus, the Court finds that movant has met the initial burden of showing that the State has not been substantially prejudiced by the delayed notice because the State had an adequate opportunity to conduct an investigation into the incident and the State has not refuted such showing (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 466 [2016]; Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]).

The next factor to be considered is whether the proposed claim has an appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Upon consideration of movant's affidavit, along with the exhibits, the Court finds that movant has established an appearance of merit of the proposed claim. It is noted that a heavier burden than a mere showing of an appearance of merit rests upon movant to prevail on the allegations at trial.

Finally, with regard to the factor of whether movant may have another available remedy, it does not appear that movant has another available remedy.

Upon consideration of all the factors, the Court finds in favor of granting movant's late claim application.

Accordingly, movant's application for permission to serve and file a late claim in the same form as the proposed claim is GRANTED and the claim shall be served and filed in compliance with the provisions of the Court of Claims Act, within 45 days of the filed-stamped date of this Decision and Order.

August 3, 2021

White Plains, New York


Judge of the Court of Claims