New York State Court of Claims

New York State Court of Claims

FRANCO v. THE STATE OF NEW YORK, #2000-016-041, Claim No. None, Motion No. M-61606


Late claim motion was denied where application was made beyond applicable statute of limitations.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
George Franco
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, AAG
Third-party defendant's attorney:

Signature date:
July 10, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of pro se claimant George Franco for permission to file and serve a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Franco asserts that on February 28, 1997, because of defendant's negligence, "a major pipe-main erupted and thereby caused a violent outburst of toxic water and waste material to invade Claimant's cell and personal property" at Sullivan Correctional Facility. Franco also asserts that he suffered dizziness, vomiting and chest pains because of his "exposure to the noxious matter," although he apparently subsequently advised the Clerk's Office that he did not wish to pursue a claim based on illness. See ¶¶ 4 and 7 of Franco's proposed claim and ¶5 of Claimant's Reply Affirmation. Ordinarily, in determining whether to grant a late claim motion, six factors enumerated in the Act must be considered[1]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

In this case, however, a threshold matter must first be considered. Section 10.6 of the Act provides in relevant part that a late claim motion may be granted only if it is made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules," i.e., before the statute of limitations on the claim has expired. Pursuant to CPLR 214, the statute of limitations for a negligence action such as Franco's is three years and would thus expire on February 28, 2000, three years from the date of the flooding incident.

Claimant states without support that he "did serve a copy of [his motion] within or prior to the expiration of the three year time period." See ¶1 of Claimant's Reply Affirmation. However, his motion was received by the Clerk's Office on March 17, 2000 and his own cover letter to the clerk is dated March 12, 2000. Moreover, his affidavit of service, which is dated March 17, 2000, does not indicate when he served the Attorney General; defendant states that the Attorney General received claimant's motion on March 16, 2000 in an envelope with a March 14, 2000 postmark. See ¶4 of the June 7, 2000 affirmation of Carol A. Cocchiola. All of these dates are beyond the February 28, 2000 date on which the statute of limitations on Franco's claim expired. Accordingly, pursuant to §10.6 of the Act, his claim may not be granted.

For the foregoing reasons, IT IS ORDERED that the motion of George Franco is denied.

July 10, 2000
New York, New York

Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).