New York State Court of Claims

New York State Court of Claims



Application for permission to file a late claim is granted.

Case Information

TRAVELERS PROPERTY AND CASUALTY COMPANY a/s/o WBF PARTNERS, A New York General Partnership and WF Associates d/b/a Delmar Convenient Express, TRAVELERS PROPERTY AND CASUALTY COMPANY, Individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over the State Insurance Fund as an entity distinct from the State of New York (see, Cardinal v State of New York, 304 NY 400, 404, Matter of James v State of New York, 90 AD2d 342, 343). Thus the Court sua sponte has amended the claim's caption to reflect the proper defendant, and to delete the named State Insurance Fund
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

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

S. Michael Nadel
Claimant's attorney:
Friedman, Hirschen, Miller, Coughlin & Campito, P.C.By: John L. Orfan
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Saul Aronson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 28, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's 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; Affirmation in Opposition; Affirmation in Reply and Exhibits annexed; Sur-Reply Affirmation.

The claimant, an insurance company, seeks permission to file a late claim for breach of contract, alleging that the State Insurance Fund has failed to indemnify it for an amount it paid on behalf of its subrogor in settlement of a personal injury claim, and for related attorneys fees.

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 defendant opposes the application principally on the grounds that the delay, which it asserts is nearly six years, is not excusable, and that the claimant has not demonstrated that the claim appears meritorious.

Contrary to the argument of counsel for the defendant that the claim accrued in April 1995 on the date of the accident underlying the personal injury claim, the claim herein accrued no earlier[1] than November 1998 when, it is alleged in the proposed claim, the claimant paid the settlement. Bay Ridge Air Rights, Inc. v State of New York, 44 NY2d 49, 54. In August 1999 the claimant commenced an action against the State Insurance Fund in Supreme Court, which does not have jurisdiction.

Although the claimant has not specifically offered an excuse for the delay, commencement of an action in the wrong forum does not excuse the delay.

The defendant does not oppose this application on the basis of the statutory factors of notice or opportunity to investigate. Those factors are therefore 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. Counsel for the defendant asserts that the defendant has been prejudiced, essentially because the delay in filing the claim led it to believe the claimant would not assert a claim against it. Upon the record before the Court, the failure to file a timely claim or notice of intention has not resulted in substantial prejudice to the defendant.

The basis for the argument of counsel that the claim does not appear to be meritorious is that the claimant has not submitted a copy of the insurance contract underlying the claim. The allegations of the claim, and the documents in support of the claimant's application are sufficient, at this stage, to demonstrate that the claim appears meritorious.

It does not appear from the submissions that the claimant has any other available remedy.

The proposed claim contains all of the information set forth in Court of Claims Act §11(b).

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

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted; claimant shall file the proposed claim in the form in which it is annexed to the application as Exhibit I except that it shall name the State of New York as defendant, it shall be denominated a Claim and it shall include a complete Paragraph 12, 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 the date of the filing of this Order.

November 28, 2000
New York, New York

Judge of the Court of Claims

[1] See, Travelers Insurance Company v Commissioners of the State Insurance Fund, 155 Misc 2d 542, 543, affd, 227 AD2d 208, in which the accrual date was held to be when the State Insurance Fund refused a demand for payment. Although such refusal is alleged in the proposed claim herein, the date on which it occurred is not specified.