The following papers were read on claimants' application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affirmation in Support and Exhibits annexed, affidavits by claimants;
Affirmation in Opposition; Affirmation in Reply.
The claimants seek permission to file a late claim in connection with an
automobile accident which occurred on November 27, 1999. It is alleged in the
proposed claim (incorrectly denominated "Notice of Claim") that the claimants
were in an automobile which was struck by an automobile owned by the State. In
their affidavits, the claimants allege that the vehicle in which claimant Caro
was the driver and claimant Tatzel was a passenger, was stopped in traffic, when
it was struck by four vehicles, the last of which was owned by the State of New
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), 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,
According to claimants' counsel the delay in filing the claim was caused by
errors in counsel's office; the delay in filing the claim was not excusable.
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.
In the absence of specific factual support of the State's opposition with
respect to the statutory factors of notice, opportunity to investigate, and
prejudice caused by the delay, those factors are presumed to weigh in the
claimant's favor. See, Calzada v State of New York, 121 AD2d 988;
Cole v State of New York, 64 AD2d 1023, 1024. Indeed, the claimants'
have submitted correspondence dated December 14, 1999 from the "claims
administrators for the State of New York Fleet" which acknowledges receipt of a
letter from claimants' counsel to the New York State Office of General Services,
advising of their representation of claimant Caro in connection with the
The claimants have not demonstrated that the proposed claim appears to be
meritorious. Although the proposed claim, and supporting affidavits, could
otherwise satisfy this requirement, the claimants' submission does not include
any substantiation for the allegations that they sustained serious injury
(Insurance Law §§ 5102[d], 5104). While it may not be necessary to
fully determine this threshold issue at this stage, in the absence of any
evidence whatsoever of serious injury, the proposed claim cannot be said to be
meritorious. See, Edwards v State of New York, 119 Misc 2d 355; cf.,
Ferster v State of New York, 129 Misc 2d 333. The claimants may have a
meritorious claim; they have not, on this submission, demonstrated that they
It appears that the claimants may have another available remedy, against the
owners and drivers of the other three vehicles.
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied without prejudice to renewal upon proper papers, due
to the failure to demonstrate that the claim appears meritorious, which weighs
heavily against granting permission to file a late claim. McCarthy v New
York State Canal Corporation, 244 AD2d 57, lv denied, 92 NY2d 815;
Klingler v State of New York, 213 AD2d 378; Savino v State of New
York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729.