New York State Court of Claims

New York State Court of Claims

COMMERCE & INDUSTRY v. THE STATE OF NEW YORK, #2000-014-509, , Motion Nos. M-61499, M-58965


Synopsis


Motion to renew application seeking permission to file late claims is granted, despite absence of a valid excuse for failing to include accrual dates in proposed claims included in original submission. The exercise of discretion to grant motion to renew is warranted by apparent merit of the proposed claims. Permission to file late claims is granted, where proposed claims by insurance companies allege breach of contract with respect to the payment of legal fees alleged to be owed by the State Insurance Fund in circumstances which are legally indistinguishable from Travelers Insurance Company v Commissioners of the State Insurance Fund, 227 AD2d 208.

Case Information

UID:
2000-014-509
Claimant(s):
COMMERCE AND INDUSTRY INS. CO., NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Pa., AMERICAN HOME ASSURANCE COMPANY and NEW HAMPSHIRE INSURANCE COMPANY
Claimant short name:
COMMERCE & INDUSTRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-61499, M-58965
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Lester Schwab Katz & Dwyer, LLPBy: Bruce Strikowsky
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 23, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)




Decision

The following papers were read on the claimants motion to renew their application for permission to file late claims: Notice of Motion, Affirmation in Support and exhibits annexed; Affirmation in Opposition; Reply Affirmation.


The claimants seek to renew their motion seeking permission to file nine separate late claims, which was denied by Order filed February 25, 2000 (Motion No. M-58965). In that Order, it was stated that "none of the proposed claims states ‘the time when . . . [the] claim arose.' [Footnote omitted] As a result, the Court is unable to ascertain whether it has jurisdiction to grant relief under §10(6)." Under the circumstances, the Court denied the application. The application now before the Court includes nine proposed claims, each of which includes an accrual date.

The Attorney General opposes the motion to renew on the grounds that no facts not known at the time of the original motion are alleged, and that the claimants have failed to provide an acceptable excuse for not including accrual dates in their original application.

"An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court. Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application." Foley v Roche, 68 AD2d 558, at 568.

While the claimants have not offered a valid excuse for failing to include accrual dates in the proposed claims included in their earlier submission,[1] the rule enunciated in Foley v Roche, supra, is not inflexible; a motion to renew may be granted as a matter of discretion despite the failure to demonstrate a valid excuse for the past failure to submit additional information. Framapac Delicatessen, Inc. v Aetna Casualty and Surety Company, 249 AD2d 36; Martinez v Hudson Armored Car & Courier, Inc., 201 AD2d 359, 360-361; Matter of Giannelli, 244 AD2d 485; see, also, Siegel, NY Prac §254 (3d ed).

Mindful of the "strong public policy in favor of resolving cases on the merits" (Acosta v State of New York, ___ AD2d ___ 704 NYS2d 594 [First Dept]), the apparent merit of the proposed claims herein (noted infra), provides reason enough to exercise discretion to grant the claimants' motion to renew, and to consider their application for permission to file late claims. Indeed, the defendant does not oppose this motion, nor did it oppose the original application, on the ground of merit.

By this one application, four insurance companies seek permission to file nine separate late claims, each of which, according to claimants' counsel, presents identical legal issues for adjudication. Each proposed claim (Exhibit F to claimants' submission) alleges breach of contract with respect to the payment of legal fees alleged to be owed by the State Insurance Fund in connection with a lawsuit, which was settled, where the Fund was co-insurer with the claimant insurance company. See, Travelers Insurance Company v Commissioners of the State Insurance Fund, 227 AD2d 208, lv denied, 89 NY2d 803.

In the proposed claim on behalf of American Home Assurance Company in connection with a personal injury action brought by Lewis D'Onofrio, it is alleged that the claim "accrued on March 25, 1994, or shortly thereafter." This application was filed on April 10, 2000, more than six years later, so that it does not appear that the Court has jurisdiction to grant the relief sought, with respect to that proposed claim. Court of Claims Act §10(6); CPLR 213. The claimants' application for permission to file that claim is denied.

With respect to the remaining eight proposed claims, although the six month period to serve and file a claim or to serve a notice of intention has lapsed, Court of Claims Act §10(4), this application was filed within the relevant statute of limitation so the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

The delay in filing the claims is not excusable. Claimants commenced actions seeking declaratory judgment in Supreme Court, which does not have jurisdiction over claims for damages against the State. Matter of E.K. v State of New York, 235 AD2d 540, 541, lv to app den 89 NY2d 815; Sevillia v State of New York, 91 AD2d 792.

The defendant has not opposed the application on the basis of the statutory factors of notice, opportunity to investigate, or prejudice caused by the delay. Those factors are therefore presumed to weigh in the claimants' favor. See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.

It does not appear that the claimants have an alternate remedy.

The defendant has not opposed the application on the basis of merit. Indeed, on the basis of the claimants' submission, it appears that the issues raised by the proposed claims are legally indistinguishable from the issue in Travelers Insurance Company v Commissioners of the State Insurance Fund, supra, in which the Appellate Division affirmed summary judgment for the claimant.

Having considered the relevant statutory factors, Bay Terrace, supra, the balance of factors weigh in the claimants' favor. It is therefore,

ORDERED, that the claimants' motion for renewal is granted, and upon renewal the application for permission to file a claim on behalf of American Home Assurance Company in connection with a personal injury action brought by Lewis D'Onofrio is denied, and the application for permission to file the remaining eight claims against the State of New York is granted; claimants shall file each proposed claim in the form in which it is included in Exhibit F to claimants' submission, except that it shall be denominated a "Claim" and it shall not allege that it is timely filed,[2] in accordance with the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of receipt of a filed copy of this order.


June 23, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1] In fact, the proposed claims were submitted in response to a prior Order, filed July 21, 1999 (Motion No. M-58965), in which the Court held determination of the application in abeyance pending submission of proposed claims, and specifically noted that each proposed claim should include an accrual date.
[2] All of the proposed claims are denominated "Amended Claim" and most of them allege timely filing.