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,
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
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
The proposed claim contains all of the information set forth in Court of Claims
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.