New York State Court of Claims

New York State Court of Claims

ENCARNACION v. THE STATE OF NEW YORK, #2000-010-029, Claim No. NONE, Motion No. M-61704


Synopsis


Late claim application

Case Information

UID:
2000-010-029
Claimant(s):
JOSUE ENCARNACION
Claimant short name:
ENCARNACION
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61704
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JOSUE ENCARNACIONPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Claimant's Supporting Affidavit with Attachment, Proposed Claim..........................................................................................................................1

Affirmation in Opposition........................................................................................2

The proposed claim alleges that on August 1, 1999, claimant was an inmate at Sing Sing Correctional Facility and, due to the State's negligence, certain items were missing from his personal property: a field jacket; a fan; "super" radio; Fila sneakers; a photo album containing photographs; tweezers; two packs of cigarettes; Realistic headphones. Claimant seeks $208.22 for the loss of property and $2000.00 for his personal suffering resulting from the loss.

The determination of a motion for leave to file a late claim requires the Court to weigh, among other relevant considerations, 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 claimant has another available remedy.

Claimant has failed to establish a reasonable excuse for the delay in filing a claim (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of the law is not a valid excuse]). The presence or absence of any one factor, however, is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979).

The most significant factor is the appearance of merit of the proposed claim. Here, claimant has failed to submit any proof, such as receipts or an I-64 form, which would establish that claimant owned such items. Nor has claimant offered any proof or allegation that defendant took possession of such items as a bailee or was, in some other manner, liable for claimant's alleged loss (see, Claflin v Myer, 75 NY 260). Further, without any such documentation, it would substantially prejudice defendant in its investigation of the claim to grant claimant's application at this late date (see, Gallagher v State of New York, 236 AD2d 400).

Accordingly, upon review of all the relevant factors. Claimant's application is DENIED.


June 28, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims