Opinion
# 2019-040-036 Claim No. 128500 Motion No. M-93489
04-18-2019
In the Matter of the Claim of REGINALD WATSON v. THE STATE OF NEW YORK
LAW OFFICES OF DEVON M. RADLIN By: Devon M. Radlin, Esq. LETITIA JAMES Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
Motion seeking permission to serve and file a Claim late pursuant to CCA § 10(6) granted.
Case information
| UID: | 2019-040-036 |
| Claimant(s): | In the Matter of the Claim of REGINALD WATSON |
| Claimant short name: | WATSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128500 |
| Motion number(s): | M-93489 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | LAW OFFICES OF DEVON M. RADLIN By: Devon M. Radlin, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 18, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Claimant, Reginald Watson, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is granted. In addition, Claimant's Motion to strike five affirmative defenses raised in the State's Answer to the Claim is denied.
On September 9, 2016, Claimant filed a Claim in the office of the Clerk of the Court. That Claim was assigned Claim No. 128500. Claimant now moves for permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6) for the same incident described in Claim No. 128500. Claimant attached a copy of that Claim to the Motion papers, as Exhibit 4, filed with the office of the Clerk of the Court on February 8, 2019. The Court will consider Claim No. 128500 to be the proposed Claim. The proposed Claim alleges that, on April 1, 2016 at approximately 2:00 p.m., while incarcerated at Altona Correctional Facility, Mr. Watson slipped and fell in the shower area in Building B (proposed Claim, ¶ 2) resulting in numerous injuries.
Mr. Watson does say in paragraphs 4 & 5 of the proposed Claim that he slipped and fell in the shower area of Building A, however, in his affidavit submitted in support of his Motion, Claimant states that the incident occurred in Building B (Affidavit of Reginald Watson, p. 1, unnumbered paragraph). --------
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence in failing to properly maintain the shower area. Negligence causes of action have a three-year Statute of Limitations (CPLR § 214[5]). Claimant asserts that the Claim accrued on April 1, 2016. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired regarding the cause of action for negligence when the Motion was served and filed.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Claimant asserts that, as a result of his incarceration and that he was transferred to the Special Housing Unit, he lost the "proof" that he served a Notice of Intention to File a Claim upon Defendant. In opposition to the Motion, Defendant has submitted the Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General (hereinafter, "Wagner Affirmation"). Attached as Exhibit B to the Wagner Affirmation is a copy of Mr. Watson's Notice of Intention to File a Claim. It was verified by Mr. Watson on July 28, 2016 and received by the Office of the Attorney General on August 2, 2016 by regular mail. The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired June 30, 2016. Confinement to a correctional facility is not an acceptable excuse for failure to file a timely Claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). However, 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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does not argue lack of notice of the essential facts or lack of opportunity to investigate (Wagner Affirmation, ¶ 7). The State does not assert that it will be substantially prejudiced by a delay in filing a claim. Those factors, therefore, weigh in Claimant's favor.
The fifth factor to be considered is whether Claimant has another remedy available. It appears that Claimant does not have a possible alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Claimant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true the factual allegations of a Claimant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim relating to the negligence cause of action has the appearance of merit. Claimant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Claimant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which were designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Mr. Watson has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Mr. Watson shall file with the office of the Clerk of the Court his proposed Claim against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Mr. Watson is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
While Claimant's Notice of Motion seeks to strike five affirmative defenses raised in the State's Answer to Claim No. 128500, the issue was not addressed in Claimant's papers and, thus, this part of the Motion is denied.
The new Claim is the same, identical Claim as Claim No. 128500, and Claimant has filed a Note of Issue and Certificate of Readiness regarding that Claim. However, he notes in a footnote to the document that "Defendant Depositions are outstanding." Either discovery was completed and the case is ready for trial, or it was not. As Defendant's counsel states in her affirmation in opposition, it cannot be both (Wagner Affirmation, ¶ 11). The Court will contact the parties after issue is joined regarding the new Claim to schedule a telephone conference regarding the status of both of Mr. Watson's Claims relating to his April 1, 2016 fall.
April 18, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Claimant's application for permission to file a late claim and to strike five affirmative defenses raised in the State's Answer: Papers Numbered Notice of Motion, Affirmation of Devon M. Radlin, Esq., & Exhibits attached 1 Affirmation in Opposition of Belinda A. Wagner, Esq., AAG, & Exhibits attached 2 Filed Papers: Claim, Answer