New York State Court of Claims

New York State Court of Claims

PIERRE v. THE STATE OF NEW YORK, #2000-016-112, Claim No. None, Motion No. M-62562


Auto accident late claim was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
Edward Weiss, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
January 10, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Desmond L. Pierre for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed claim arises from an accident in which a state-owned vehicle collided with Pierre's vehicle in Brooklyn on June 28, 2000. In determining whether to grant this motion, the six factors enumerated in §10.6 must be considered. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[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.

The first three factors -- comprehending notice, opportunity to investigate and prejudice -- are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, a police report was prepared on the date of the accident. On August 16, 2000, less than two months after the accident, claimant's attorney sent a letter to the "New York State Department of Services - Bureau of Insurance" advising of the accident. See Exhibit A and the following undesignated Exhibit to the undated affirmation of Edward R. Weiss. In addition, claimant's motion was made less than four months after the accident. On balance, claimant satisfies these three factors of the Act.

Although the parties do not address the alternate remedy factor, it appears that claimant would also have a claim against the driver of the other vehicle. As to excuse, claimant cites "law office failure." This is not a sufficient excuse for the purposes of the Act. See, e.g., Nyberg v State of New York, 154 Misc 2d 199, 585 NYS2d 147 (Ct Cl 1992).

Finally, while merit is one of six factors, "it would be futile to permit the filing of a legally deficient claim." Prusack v State of New York, 117 AD2d 729, 730, 498 NYS2d 455, 456 (2d Dept 1986). Under the No-Fault Law, a threshold showing of serious injury under §5102(d) of the Insurance Law must be made. See Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 (1982). In this case, the police report indicates that no one was injured in the accident. Moreover, neither claimant, his attorney, nor any physician has submitted an affidavit describing his injuries. See Pagano v Kingsburg, 182 AD2d 268, 587 NYS2d 692 (2d Dept 1992). In fact, the only description of his alleged injuries is in the proposed claim, and it is vague and incomplete. The first sentence of paragraph four of such proposed claim provides that Pierre "sustained severe permanent personal injuries, the full extent of which is not presently known, including but not limited to, upon information and belief, injuries to the [sic]." We are not given the object of "injuries to the."

Clearly, then, claimant has failed to make a threshold showing of serious injury under the Insurance Law. Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to ascertain whether a claim appears meritorious: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." In view of the foregoing, I cannot find that Desmond L. Pierre has satisfied the merit factor of the Act.

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-62562 is denied.

January 10, 2001
New York, New York

Judge of the Court of Claims

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).
  1. [2]The following were reviewed: claimant's notice of motion with affirmation in support, Exhibit A, undesignated Exhibit and the proposed claim; and defendant's affirmation in opposition with Exhibit A.