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,
Affidavit and Exhibits annexed; Affirmation in Opposition and Exhibits
; Reply Affirmation, Affidavit of
Merit, and Exhibits annexed
The proposed claim alleges that the claimant was injured as a result of the
negligence of the defendant. The claimant's submission appears to allege that
the negligence consisted of the failure of the defendant to fully open a gate at
Queens College, one of the senior colleges of the City University of New York,
as a result of which a truck operated by someone for whom the defendant is not
responsible, became caught on the gate. In the course of attempting to separate
the truck from the gate, the claimant, who at the time was employed by the owner
of the truck, was struck by the gate.
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 for
permission to file a late claim 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.
Upon the circumstances presented by the claimant, the delay in filing the claim
was not excusable. His counsel's affidavit explains that an action against the
defendant was mistakenly commenced in Supreme Court.
The defendant does not oppose this 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 claimant's favor. See,
Calzada v State of New York, 121 AD2d 988; Cole v State of New York,
64 AD2d 1023, 1024. It appears from the claimant's submission that the
defendant was served with a summons and complaint in the Supreme Court action
within a few days after the claimant reached the age of 18, and within 6 months
after the incident.
The claimant has not demonstrated that the proposed claim appears to be
meritorious. The proposed claim alleges, in very general terms, that the
defendant was negligent. These general and conclusory allegations of negligence
are insufficient to establish that the claim appears to be meritorious.
Witko v State of New York, 212 AD2d 889, 891; Calco v State of New
York, 165 AD2d 117, 119, lv denied 78 NY2d 852; Simpson v State of
New York, 96 AD2d 646; Sevillia v State of New York, 91 AD2d 792.
Neither the testimony of the claimant at a hearing pursuant to General Municipal
Law §50-h, nor the claimant's "Affidavit of Merit" demonstrates that the
claim appears to be meritorious.
The failure to demonstrate that a proposed claim appears to be meritorious
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.
It appears that the claimant has another available remedy, against Waste
Management, Corp., which is named in the body of the proposed claim.
Having considered the relevant statutory factors, Bay Terrace, supra,
the application is denied.