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
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
the rule enunciated in Foley v
, 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
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
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
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.