New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2000-001-049, Claim No. NONE, Motion No. M-61919


Claimant's motion seeking permission to file a late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Douglas Grant, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Susan J. Pogoda, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion seeking permission to file a late claim pursuant to Court of Claims Act § 10 (6): Notice of Motion to File a Late Claim, dated June 14 and received June 19, 2000; Affirmation in Support of Douglas Grant, pro se, dated June 14 and received June 19, 2000, with annexed unmarked exhibits; Affirmation in Opposition of Susan J. Pogoda, Esq., AAG, dated July 19 and filed July 21, 2000, with annexed Exhibits A-B; and Affirmation in Rebuttal of Douglas Grant, dated August 4 and filed August 10, 2000.

Claimant Douglas Grant ("claimant"), pro se, moves for permission to file a late claim. His papers do not include the required proposed claim (see, Court of Claims Act § 10 [6]; § 11); however, in his notice of motion he alleges that the Department of Social Services[1] and its Office of Administrative Hearing Compliance Unit wrongfully and without notice terminated his food stamp benefits (see, Social Services Law § 95) in August 1998 (Notice of Motion to File a Late Claim, dated June 14 and received June 19, 2000, with annexed unmarked exhibits ["Notice"],¶ 2). Claimant seeks relief in the form of a preliminary injunction and an order restoring benefits retroactively to the date of termination (Notice, ¶ 3).[2] Defendant State of New York ("defendant" or "the State") opposes the motion, arguing that claimant's failure to attach a proposed claim renders his papers fatally deficient; the action does not appear to be meritorious; and claimant has offered no reasonable excuse for the delay.

This Court, in its discretion, can authorize the filing of a late 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" (Court of Claims Act § 10 [6]). In order to determine whether to grant an application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act § 10 (6): (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 claimant has another available remedy. The Court in the exercise of its discretion balances these factors.

While the presence or absence of any one factor is not dispositive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim (see, Plate v State of New York, 92 Misc 2d 1033). A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a claimant cannot meet this low threshold and the claim is patently without merit, it would be meaningless and futile for the Court to grant the appplication even if all the other factors in Court of Claims Act § 10 (6) weighed in favor of claimant's request (see, Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

Here, defendant correctly argues that for the relief sought claimant is consigned to the administrative procedures set forth in the Social Services Law and review of an adverse determination in a timely CPLR article 78 proceeding (see, Social Services Law § 22). Specifically, claimant was entitled to a fair hearing regarding the alleged termination of his food stamp benefits (see, Social Services Law § 22 [1], [3] [c], [5] [d]; see also, 18 NYCRR 358-5 et seq.), which he evidently requested, but failed to pursue (see, Affirmation in Opposition of Susan J. Pogoda, Esq., AAG, dated July 19 and filed July 21, 2000, Exhibit A [Affidavit of Mary Elizabeth T. Dunne, sworn to May 24, 1999]); specifically, claimant requested a fair hearing in October, 1998 to contest an alleged discontinuance of food stamp benefits taking place in August, 1998, but did not appear at the hearing scheduled for November 20, 1998 in response to his request, ask for an adjournment or offer any reason for his failure to appear (id., ¶ 10).

" ‘[T]his Court's jurisdiction is limited to awarding damages in tort or contract and not to review[ing] discretionary decisions of agencies . . . . That jurisdiction is vested in the Supreme Court' " (Ouziel v State of New York, 174 Misc 2d 900, 906, quoting Bertoldi v State of New York, 164 Misc 2d 581, 587, affd ___ AD2d ___ [Aug. 10, 2000]). Claimant essentially seeks to annul an alleged agency termination of benefits and to reinstate those benefits (Notice, ¶ 3). He does not seek money damages for any alleged tort, which would allow this Court to exercise its jurisdiction (see, Court of Claims Act § 9; Ouziel v State of New York, supra). Further, even if claimant were seeking money damages, " ‘where statutes provide a method for review of adjudications by administrative agencies, they must be followed. A collateral review may not be sought under the guise of a claim for money damages' " (Perez v State of New York, Ct Cl, unreported decision filed August 3, 1999, Read P.J., Motion No. M-59596, slip opn p 2, quoting Lubin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802).

The Court therefore denies claimant's motion for permission to file a late claim: claimant failed to submit a proposed claim with his motion papers, as required by Court of Claims Act

§ 10 (6); and, in any event, the papers filed on this motion do not hint of any potentially meritorious cause of action within the meaning of Court of Claims Act § 10 (6).

September 6, 2000
Albany, New York

Judge of the Court of Claims

Chapter 436 of the Laws of 1997, Part B, § 122, effective August 20, 1997, renamed the "Department of Social Services" the "Department of Family Services" as of April 1, 1997.
Claimant also challenged this alleged termination of food stamp benefits in an action in federal court, which was dismissed in January 2000 for lack of subject matter jurisdiction (see, US Const 11th Amend) (Notice, Exhibit 1).